Overview and History Collaborative law
Overview and History
Collaborative law(also called collaborative practice, collaborative divorce, and collaborative family law) was originally a divorce procedure in which the two parties agreed that they would not go to court, or threaten to do so. It has expanded significantly since then. This approach to conflict resolution was created in 1990 by a Minnesota family lawyer named Stu Webb, who saw that traditional litigation was not always helpful to parties and their families, and often was damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada and Australia. Per the International Academy of Collaborative Professionals, more than 10,000 lawyers have been trained in collaborative law in the United States, with collaborative practitioners in at least 46 states. In some localities, collaborative law has become the predominant method for resolving divorces.
In a collaborative divorce, the parties strive to reach a fair settlement through a series of meetings (sometimes called joint sessions) between the two parties and their lawyers, and sometimes other neutral experts. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs and interests of the parties, and help them progress towards and create a settlement that is consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards. Some have critiqued this aspect of collaborative law (and mediation), believing that court processes are better suited towards protecting rights than voluntary dispute resolution processes.
There is a parallel between collaborative law and mediation, in that both are facilitative processes. However, in collaborative law, the parties are fully informed about the law and the consequences of various options, and their advocates facilitate the negotiations. In mediation, the mediator is a neutral third party who doesn't represent or advise either side. A comparison chart between collaborative law and litigation is available here: .
The key document in a collaborative case is the participation agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and lawyers agree that:
The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original attorneys must withdraw and the parties must retain new lawyers (the "disqualification" provision);
Neither party will take advantage of mistakes by the other side;
The parties will freely disclose all pertinent information and will not hide any material facts;
What is said in the settlement meetings remains confidential;
All experts will be neutral, and hired jointly by both parties; and
Everyone will behave courteously and in good faith.
The disqualification provision is a key element to a collaborative case. It ensures that the lawyers' interests are aligned with the clients' interests of reaching settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution, because there is a relatively high cost to ending the process prematurely. Collaborative law practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Additionally, when court is not an option, it is believed that many collaborative law attorneys will retool to learn the additional skills that may be needed to resolve disputes without resorting to a third party decision maker.
Some lawyers who are not trained in the collaborative process believe that the disqualification clause is an unnecessary disadvantage, because all parties are required to appoint new lawyers if the collaborative process ends without settlement.