Collaborative Law – An Alternative to Litigation

What is Collaborative Law?

Collaborative law is an alternative to the traditional legal model where the parties agree to resolve their dispute without resorting to litigation. That’s right, imagine entering into an agreement to resolve your legal matter in good faith while saving the time and cost of going to court. It sounds very simple, but the collaborative process is quite structured which ensures the path to avoid litigation is adhered to.

Collaborative law can be used in many areas of practice, including civil, probate, real estate and family law. Collaborative practice is especially useful for matters that are emotionally charged and revolve around interpersonal relationships. This could be close friends or family members who are having a business dispute, siblings fighting over the assets in their deceased parent’s estate, or parties who are unwinding their marriage.

Is Collaborative Law Similar to Mediation?

While both mediation and collaborative law fall under the blanket of ADR (Alternative Dispute Resolution), the two practices are very different. Collaborative law allows the parties with their collaboratively trained attorneys to commit at the onset of a case to stay out of litigation by creating a resolution that works for everyone. Mediation differs from collaboration as it employs a neutral third party. The neutral encourages the parties to come to their own resolution, but the matter itself remains under the courts and threat of litigation for any issues that are not resolved during the process. Another differentiating aspect between the two practices is that mediation does not employ any additional professionals necessary to assist the parties in areas related to their matter. For example, this could include a child specialist or property valuator, to name a few. A final difference is mediation will take anywhere between 3-8 hours on one day or at most, several hours spread over a few days while collaborative practice holds as many meetings as necessary that are focused but shorter in length to come to resolution on all issues.

How Does Collaborative Law Work?

Collaborative practice must be voluntarily entered into and the parties must both be on board to find a “workable, workable” solution. The specific tenants are as follows:

1. The parties first sign an agreement describing the nature and scope of the matter and the duties and responsibilities of each party.
2. The parties must voluntarily disclose all information which is relevant and material to the matter that must be decided.
3. The parties must use good faith efforts in their negotiations to reach a mutually acceptable resolution.
4. Each party must be represented by a Collaboratively trained attorney whose representation terminates upon the undertaking of any contested court hearing or violation of the collaborative agreement.
5. The parties may engage any professional whose expertise is needed during the process.

In short, the parties commit to the process, save the money that would otherwise be spent on pleadings, discovery requests/responses, arguing and the like, and the necessary professionals are hired. The parties then split the costs and round table about the issues, along with the trained professionals, to come to a mutually beneficial resolution.

What Are the Advantages of Collaborative Law?

Besides the obvious – avoiding litigation including the time, expense and stress that goes along with that process, collaborative practice provides the individuals the opportunity to be in control and address all facets surrounding the legal issues while coming to “workable-workable” solutions.  For example, in a family law matter, the parties may be divorcing but instead of the traditional fight that can last a year or more over how the assets and debts should be divided, the parties are able to agree to have a financial professional review the marital estate, consider the financial future of both parties and come up with a division of the assets. This method not only accomplishes the legal portion of splitting the marital property, but also sets the parties up with a healthy financial posture after the divorce is finalized.

Other benefits include:

• A greater likelihood that all issues will be resolved
• Preserving a relationship between the parties’ post agreement
• Eliminate the risk or fear of the unknown as the parties remain in control of all aspects of their matter
• Getting through a legal matter without feeling cheated or financially drained
• Avoiding returning to court on a post judgement issue

Why Haven’t I Heard of Collaborative Law Before Now?

If you haven’t heard of collaborative practice, it could be related to your geographical location. Collaborative law was created in the late 1980’s to early 1990’s and has been widely used in the Midwest and on the East Coast and Internationally. While it isn’t commonly used in the Southwest, yet, there are organizations and communities of like-minded professionals who are working to connect with one another and educate in efforts to better serve the client.

Not One Size Fits All

There is one commonality to all legal matters – one way or another the issues will be resolved. If the decision is made by the courts, then the parties have handed over their power and control over something that is very personal to a system that can never truly know all of the details and has no personal knowledge of the parties. Each case is like a fingerprint and care must be taken for the specifics of each case on an individual basis. This simply cannot be accomplished in the courtroom. That being said, there are certain issues that must go before a judge, but many times court can be avoided. Knowing that, and knowing the cost associated with traditional litigation, individuals should be empowered to be active participants in their matter and consider an alternative to litigation.

If you wish to learn more please visit www.collaborativepractice.com.