What is Collaborative Law?
Collaborative Law (also known as Collaborative Practice) is a refreshing new approach to practicing law. This process is becoming increasingly popular with people who are dissatisfied with the traditional litigation process. Collaborative Law is a “process”, just like mediation or litigation are “processes” that you can use to resolve a legal dispute.
Collaborative Law has a similar philosophy to mediation. Both are premised on good faith, full disclosure and achieving win-win agreements. The main difference between mediation and Collaborative Law is that Collaborative Law participants each have their own attorney, while mediation clients work primarily with a neutral third party. In mediation, the mediator assists both participants in reaching an agreement but does not represent either of them. Further, the mediator cannot give legal advice whereas a Collaborative Law attorney can give legal advice if you want them to.
Models of Collaborative Law
There are two types of Collaborative Law: Lawyer-only and Interdisciplinary. Lawyer-only is what it sounds like, i.e., the case has two clients and two collaboratively trained lawyers. Interdisciplinary Collaborative Law gives clients the option of including other professionals on the collaborative team. These professionals include the Collaborative coach, the financial specialist and the child specialist (in family law cases). These professionals can be brought in to provide specialized knowledge and input to the Collaborative team. Interdisciplinary Collaborative Law model recognizes that a legal dispute is as much emotional as it is legal.
The Participation Agreement
The “Participation Agreement” is one of the hallmarks of the Collaborative Law process. This Agreement spells out the expectations, rights and responsibilities of the clients and their lawyers in the Collaborative process. A case is not technically a “Collaborative” case unless a Participation Agreement has been signed by both parties. Lawyers in certain jurisdictions will also sign the Participation Agreement. The Participation Agreement says the participants will negotiate their entire dispute and will not go to court or threaten to go to court. Further, it contains something called the “Disqualification Provision.”
The Disqualification Provision
The Disqualification Provision is a contractually binding provision which says that if either party chooses to file a case in court then both parties have to hire new litigation lawyers. There are a couple benefits to this from the client’s perspective. First, the client knows that they will never be cross-examined by the lawyer with whom they are discussing their case. Second, and perhaps more important, the client knows that when they hire a Collaborative lawyer, their Collaborative lawyer is 100% committed to settling their case. The client does not have to worry about the lawyer trying to settle on one hand while also preparing for trial on the other. In short, the disqualification provision allows everyone to focus on the important work of settling your case.
Collaborative Law looks very different from traditional litigation. For example, most of the work is done in a series of four-way meetings which at one of the lawyer’s offices. Collaborative Law is designed to give you a respectful, amicable, healthy legal process. When compared to the traditional legal process, most clients (particularly family law clients) determine that Collaborative Law is simply a better model.