What is collaborative law?

Collaborative attorneys assist in negotiating solutions to your legal problem and will not take the case to court. Since collaborative law rejects the backdrop of litigation, a substitute dispute resolution model is put in its place. This new model calls for face-to-face conferences  during which the parties and their collaborative attorneys:

  • Identify interests, goals and objectives of both participants;
  • Gather information necessary to the decision-making process;
  • Develop multiple settlement options
  • Evaluate all these options, and;
  • Negotiate a final settlement which best meets the needs of both parties.

Parties to a collaborative case sign a written participation agreement. The agreement includes a promise to make full disclosure of assets, liabilities, and facts which may affect their classification or value. Failure to make full disclosure can be grounds to set aside any agreement reached as a result. If experts are needed (such as child specialists, financial planners or appraisers), they are hired by joint decision, and the cost is discussed in advance.

If either party to the dispute decides to take the case to court, both collaborative counsel must withdraw. If your collaborative counsel cannot successfully assist you in creating a settlement acceptable to both sides, he or she loses a client. You must hire a new attorney to represent you in court. Experts hired collaboratively cannot be used in court absent written agreement by the parties.

This disqualification requirement is what adjusts the mind set of the participants and fuels the engine of collaboration. The collaborative process is not just attorneys who have agreed to act in a civilized manner. The collaborative process shifts the conversation away from what a judge might do, and focuses instead on the interests and goals of the parties. This alters the state of mind of everyone involved. Clients now find it in their interest to work together to obtain the best possible outcome for both parties given their circumstances. If the lawyers and the parties know they can fall back on a court-imposed solution, it actually stifles their creativity.

Your collaborative lawyer is a settlement specialist. Your collaborative lawyer’s role is to provide you with legal advice and negotiation assistance, and to make sure the collaborative process is honored. The long-term benefit of collaborative decision making, particularly in families with children, cannot be overstated.

Collaborative law practice does not make a difficult situation simple. It’s still hard work for lawyer and client. In most cases, handling your case collaboratively will produce the best possible outcome for both sides with the least emotional turmoil. Certainly, not every case should be handled collaboratively. For example, cases involving ongoing domestic abuse, and cases requiring forensic accounting (discovery of hidden assets or income), would not likely be candidates for collaborative case management. In most other cases, though, it should be considered as one possible means of handling your legal situation.

Collaborative law has quickly gained acceptance as a dispute resolution model, particularly in family law. There are collaborative law groups in almost every state in the USA, and in more than 20 countries around the world. Collaborative law is a growing movement because it is a logical alternative to litigation. To quote Stu Webb, the founder of collaborative law, “Collaborative law is a simple concept. Collaborative law is a profound concept. That’s the best kind of concept: simple and profound.”

If you are not receiving advice regarding the collaborative law practice option, you are not being presented with the full range of possible solutions to your legal problem.

Mediate Early and Often

For more than 20 years, I told my clients that the best way to settle a case was to be prepared to try it. Settlement efforts and mediation came only after a complete discovery process. Discovery is an umbrella term for a series of procedural devices lawyers use to learn information that might be used as evidence in a trial.  Discovery can be a labor-intensive and emotionally draining process.

I now advocate for early mediation to regulate discovery as well as settlement. An early neutral intervention can help parties target their information-gathering and focus on settlement from the beginning of the case.  This avoids a shotgun approach to discovery that can lead to frustration, anger, wasted time and energy, and impasse.

We often spend time in mediation undoing the damage we have done to the relationship of the parties by turning over every stone in every case. Settlement occurs in more than 90% of cases.  It makes sense to steer the parties toward resolution from the beginning, rather than veering from a path toward trial in the later stages of the pretrial process.

We can use mediation or settlement conferences to target discovery.  Parties will better understand the need for requested information.  This will encourage full mutual disclosure of relevant information, and help avoid unnecessary and over broad information requests.  Attorneys can serve client interests more efficiently and effectively.

This problem-solving approach isn’t appropriate in all cases, but fits the needs of many clients. It’s in the nature of attorneys to be competitive, but it’s not about the lawyers. It’s about what the client needs and wants. We need to explain the options to the client and develop a case management strategy in consultation with them. Most clients would focus on early settlement if they felt they were going to have the information they needed, competent advice on the law, and assistance in negotiation.

The courthouse door is always open to clients whose cases, for whatever reason, can’t settle. We don’t always have to drag clients kicking and screaming to the courthouse steps to test the settlement waters. If we don’t treat every case like a trial in waiting, it will enhance our collective professional reputation.

Please share your thoughts or experiences on mediation or settlement in the comment section below.

Thanks to Randy Kessler, Kessler & Solomiany LLC, and the  KS Family Law Blog, for inspiring this piece.