Collaborative Law Questions & Answers

Excerpted from Handbook for Clients: An orientation to …dispute-resolution options available to clients © 2001 American Bar Association

1. What is Collaborative Law?

Collaborative law is the newest dispute-resolution model. In collaborative law, both parties to the (legal action) retain separate, specially trained lawyers whose only job is to help them settle the case. If the lawyers do not succeed in helping clients resolve the issues, the lawyers are out of a job and can never represent either client against the other again. All participants agree to work together respectfully, honestly, and in good faith to try to find win-win solutions to the legitimate needs of both parties. Four creative minds work together to devise individualized settlement scenarios. No one may go to court, or even threaten to do so, and if that should occur, the collaborative law process terminates and both lawyers are disqualified from any further involvement in the case. Lawyers hired for a collaborative law representation can never under any circumstances go to court for the clients who retained them.

2. Is Collaborative Law only for divorces?

Collaborative lawyers can do everything that a conventional family lawyer does except go to court. They can negotiate non-marital custody agreements, premarital and postnuptial agreements, and agreements terminating gay and lesbian relationships. Collaborative Law can also be used in probate disputes, business partnership dissolutions, employment and commercial disputes—wherever disputing parties want a contained, creative, civilized process that builds in legal counsel and distributes the risk of failure to the lawyers as well as the clients.

3. What is the difference between Collaborative Law and mediation?

In mediation, there is one neutral professional who helps the disputing parties try to settle their case. Mediation can be challenging where the parties are not on a level playing field with one another, because the mediator cannot give either party legal advice, and cannot help either side advocate a position. Collaborative Law was designed to deal with these problems, while maintaining the same absolute commitment to settlement as the sole agenda.

Each side has legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the direct participation of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

4. How is Collaborative Law different from the traditional adversarial process?

• In Collaborative law, all participate in an open, honest exchange of information. Neither party takes advantage of the miscalculations or mistakes of the others, but instead identifies and corrects them.
• In Collaborative law, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process.
• Both parties in collaborative law use joint accountants, appraisers, and other consultants, instead of adversarial experts.
• In collaborative law, a respectful, creative effort to meet the legitimate needs of both (parties) replaces tactical bargaining backed by threats of litigation.
• In collaborative law, the lawyers must guide the process to settlement or withdraw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or is tried.
• In collaborative law, there is parity of payment to each lawyer so that neither party’s representation is disadvantaged vis-a-vis the other by lack of funds, a frequent problem in adversarial litigation.

5. What kind of information and documents are available in the collaborative law negotiations?

Both sides sign a binding agreement to disclose all documents and information that relate to the issues, early and fully and voluntarily. “Hide the ball” and stonewalling are not permitted. Both lawyers stake their professional integrity on ensuring full, early, voluntary disclosure of necessary information.

6. What happens if one side or the other does play “hide the ball,” or is dishonest in some way, or misuses the Collaborative Law process to take advantage of the other party?

That can happen. There are no guarantees that one’s rights will be protected if a participant in the collaborative law process acts in bad faith. There also are no guarantees in conventional legal representation. What is different about collaborative law is that the collaborative agreement requires a lawyer to withdraw upon becoming aware his/her client is being less than fully honest, or participating in the process in bad faith.

For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.

7. Is Collaborative Law the best choice for me?

It isn’t for every client (or every lawyer), but it is worth considering if some or all of these are true for you:
a) You want a civilized, respectful resolution of the issues.
b) You would like to keep open the possibility of friendship with your partner down the road.
c) You will be co-parenting children together and you want the best co-parenting relationship possible.
d) You want to protect your children from the harm associated with litigated dispute resolution between parents.
e) You and your partner have a circle of friends or extended family in common that you both want to remain connected to.
f) You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
g) You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
h) You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).
i) You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
j) You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
k) You understand that conflict resolution with integrity involves not only achieving your own goals but finding a way to achieve the reasonable goals of the other person.
l) You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge—fixing the problem rather than fixing blame.

8. My lawyer says she settles most of her cases. How is collaborative law different from what she does when she settles cases in a conventional law practice?

Any experienced collaborative lawyer will tell you that there is a big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law cases settle figuratively, if not literally, “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do.

Nothing could be more different from what happens in a typical collaborative law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.

9. Why is collaborative law so effective?

Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families.

Collaborative lawyers do not act as hired guns, nor do they take advantage of mistakes inadvertently made by the other side, nor do they threaten, or insult, or focus on the negative either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in.

Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but …no matter how good the lawyers may be for their own clients, they cannot succeed as Collaborative Lawyers unless they also can find solutions to the other party’s problems that both clients find satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.

10. What if my spouse or partner chooses a lawyer who doesn’t know about Collaborative Law?

Collaborative lawyers have different views about this. Some will “sign on” to a collaborative representation with any lawyer who is willing to give it a try. Others believe that is unwise and will not do that.

Trust between the lawyers is essential for the collaborative law process to work at its best. Unless the lawyers can rely on one another’s representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. If your lawyer lacks confidence that the other lawyer will withdraw from representing a dishonest client, it might be unwise to sign on to a formal collaborative law process (involving disqualification of both lawyers from representation in court if the collaborative law process fails).

Similarly, collaborative law demands special skills from the lawyers—skills in guiding negotiations, and in managing conflict. Lawyers need to study and practice to learn these new skills, which are quite different from the skills offered by conventional adversarial lawyers. Without them, a lawyer would have a hard time working effectively in a collaborative law negotiation.

11. Why is it so important to sign on formally to the official Collaborative Law Agreement? Why can’t you work collaboratively with the other lawyer but still go to court if the process doesn’t work?

The special power that Collaborative Law has to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the lawyers can still consider unilateral resort to the courts as a fallback option, their thought processes do not become transformed; their creativity is actually crippled by the availability of court and conventional trials. Only when everyone knows that it is up to the four of them and only the four of them to think their way to a solution, or else the process fails and the lawyers are out of the picture, does the special “hypercreativity” of collaborative law get triggered. The moment when each person realizes that solving both clients’ problems is the responsibility of all four participants is the moment when the magic can happen.

Collaborative law is not just two lawyers who like each other, or who agree to “behave nicely.” It is a special technique that demands special talents and procedures in order to work as promised. Any effort by parties and their lawyers to resolve disputes cooperatively and outside court is to be encouraged, but only collaborative law is collaborative law.

12. How do I enlist my spouse (or the other party) in the Collaborative process?

Talk with your spouse (or the other party), and see whether there is a shared commitment to collaborative, win-win conflict resolution. Share materials such as this handbook and articles that discuss collaborative law. Encourage your spouse (or the other party) to select counsel who has experience and training in collaborative law and who works effectively with your own lawyer: lawyers who trust one another are an excellent predictor of success in dispute resolution.

13. How does the cost of collaborative law compare with the cost of litigation?

Litigation is, quite simply, the most expensive way of resolving a dispute. By way of illustration, it is common for litigated divorces to begin with a motion for temporary support. The result is exactly that—a temporary order, not any final resolution of any issues. It is not uncommon for a single temporary support motion to cost as much or more in lawyers’ fees and costs as it costs for an entire collaborative law representation. A rule of thumb is that collaborative law representation will cost from one tenth to one twentieth as much as being represented conventionally by a lawyer who takes your case to court.