What is the Disqualification Provision?
The Collaborative Disqualification Provision is a provision in the Participation Agreement which requires both Collaborative lawyers to withdraw if the case leaves the Collaborative process and proceeds to litigation. Many people comment that this provides a financial disincentive to leave the process. While this is true, that’s not the point of the disqualification provision. In fact, there are several very good reasons for having this provision be part of the Collaborative process.
From the clients’ perspective, having the disqualification provision insures that both attorneys are committed 100% to resolving the case. In traditional (non-Collaborative) cases, it is often the case that attorneys try to settle on one hand while also preparing for trial on the other. The disqualification provision prevents this by making sure the focus is completely on settlement.
The disqualification provision ensures clients can safely share their thoughts and concerns and with the Collaborative lawyers without fear that it will be held against them later on. Further, clients can rest easy knowing that they will never be cross-examined by the other lawyer. This leads to an atmosphere of trust and creativity, both of which lead to productive resolution of cases.
From the lawyers’ perspective, the disqualification provision frees them up to focus entirely on settlement. The lawyer doesn’t have to worry about preparing for trial, deposing witnesses, etc. Instead, the lawyer puts all of his or her energy into constructively resolving the dispute.
The disqualification provision plays an important role in the Collaborative Law process. Rather than being a ‘harsh’ provision, the disqualification provision actually promotes resolution by ensuring that everyone involved is completely committed to resolving your case.