Collaborative Law grew out of a recognition that this process discourages the often destructive and divisive war created by litigation, while encouraging creative, time-saving, cost-effective resolution of issues through the involvement of clients, their attorneys and interdisciplinary network professionals in the process of settlement.
There appears to be general agreement among lawyers and clients that the costs of litigation are out of control. This is perhaps most evident in the area of family law, where the personal and financial costs of bitter court fights are staggering. Corporation counsel and the small business community agree, recognizing that even when they "win," they lose valuable time, energy and money. The costs, when measured in lost relationships, lost productivity and fees, far too often outweigh the gains.
Despite this recognition, it is still easy to get trapped in our adversarial reflexes and methods. When negotiations get difficult, when frustration and perceptions of injustice grow, lawyers and angry clients instinctively turn to the courts with demands for vindication.
Over the last decade, lawyers and litigants have been using mediation to explore options and negotiate settlements with the assistance of a neutral third party. This development in civil practice has been positive. Mediators can help by buffering jabs and re-framing issues to make negotiations easier. However, mediation may be avoided and, when tensions get high, it can always be abandoned. In addition, given the role of the mediator as a "neutral" there is no one to advocate for the weaker party in a dispute in order to level the playing field.
The Collaborative Law Standards of Conduct, and Participation Agreements details how the collaborative lawyers and their clients approach each other and their disputes with a written commitment not to go to court or even threaten to go to court. In signing the Participation Agreement, both lawyers and parties pledge to cooperate in a good faith effort to appraise and resolve the dispute fairly, and to voluntarily disclose relevant information. Should one of the parties insist that its lawyer behave inconsistently with these commitments the lawyer must withdraw.
Also, if one party decides to terminate the collaborative process and initiate court action, the collaborative lawyers all must withdraw from the case and the clients will have to start over with new litigation lawyers. The collaborative lawyers will cooperate fully in the transfer of the case to the litigation counsel. However, from the moment of an "adversarial" court filing, the collaborative lawyers (and their firms) are prohibited from receiving any additional fees from the case. This is the heart and the discipline of Collaborative Law. Lawyers function as counselors. They use all of their legal perceptive and advocacy skills to analyze problems and work out solutions that their clients can accept, without going to court.
Correlatively, each party makes a formal commitment to find a way to resolve the despite in a manner that is also acceptable to the other, even if the process of doing so is difficult.
Collaborative law may not be for every lawyer or every case. To sign the Participation Agreement is to cross an intrenched line. Lawyers leave behind the familiar, unilateral practices of adversarial law and enter into a new territory. Retreating to the office in a huff to fire off that inconsequential motion or a new set of interrogatories is not an option. Techniques to intimidate likely will be counterproductive.
Aggressive arguments will be less effective than attentive listening. The skills needed for the effective practice of collaborative law will not come easily or naturally to everyone. Nor should potential defendants assume this process will yield them cheap settlements of would-be lawsuits. Well-represented parties will not throw away their rights and remedies just to avoid court.
What parties can realistically hope to do is trade the antagonistic feelings that result from a hard fought court battle, for a genuine sense of resolution. They can hope for significant savings in the transaction costs of litigation. They can expect much greater compliance with the terms of the collaboratively reached agreement than the terms of an imposed order. And they can expect a continuing, if not improved relationship with the other party.