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Collaborative Law

Collaborative Law provides clients and their lawyers with a new, formal and strictly non-adversarial approach to resolving legal disputes. It encourages mature, cooperative and non-combative behavior, as the parties contract to eliminate litigation as an option.

Our trained participants use collaborative techniques to help parties reach settlement in family, employment and other civil matters. Lawyer's Weekly has called it "A Revolution in Divorce Law.

For more information: http://www.collaborativelaw.com/

Questions

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What is the goal of collaborative lawyering?

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For whom is collaborative law a good idea?

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Representing client zealously

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Can a party quit during the process?

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Assessing a Case

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Requirements for Lawyers

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Firm Disqualification

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In-House Corporate Counsel

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Why Lawyer Must Resign If Case Litigated

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Lawyer-Client Relationship

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Only One Side Signs Agreement

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If Initiated by Non-Trained Lawyer

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Different from Mediation

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End Result of Case

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Case Management Deadlines

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Statutes of Limitation

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Attorney Fees

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Impasse Resolution

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Disclosure of Non-Discoverable Matter

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Disclosure of Privileged Matter

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Disclosure of Information Not Requested

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Disclosure Problems Found Later

 

What is the goal of collaborative lawyering?

The goal or purpose of collaborative law is to offer lawyers and their clients a structured, non-adversarial alternative to an increasingly adversarial system of dispute resolution.

It guarantees consumers of legal services high quality, skilled legal counsel to assist in the evaluation and resolution of a problem, without litigation.

For whom is collaborative law a good idea?

Not every lawyer will want or be able to practice collaborative law. Not every case will be appropriate for collaborative law, nor will every client be interested in avoiding the adversarial contest.

For many lawyers, however, the adversarial experience has led to a belief that the commitment of time, energy, and money to an adversarial case often does not achieve an outcome which provides a cost effective or even a good solution to their clients’ problems.

Similarly, many consumers of legal services are looking for experienced legal counsel and skilled advocacy but do not want litigation. For these lawyers and these clients, collaborative law is an excellent option.

 

Representing client zealously

By entering into a collaborative law participation agreement lawyers and their clients have thoughtfully agreed to limit the lawyer’s role within the contractual relationship to that of providing representation for settlement purposes only.

Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the collaborative lawyer does not give up the role of advocate for his or her client.

None of a lawyer’s duties or obligations to a client are affected by this limitation.

Can a party quit during the process?

Nothing in the participation agreement precludes a party from terminating the collaborative law process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel.

Of course, the other side also will be trading their collaborative lawyer for a litigator.

Assessing a Case

While the participation agreement prohibits threatening litigation, the lawyer’s advice to his or her client as to the strengths and merits of his or her claim will always include an assessment of the likely outcome if the case had to be litigated.

Consideration of the law and one’s legal rights is always appropriate in analyzing what a fair and appropriate outcome in a collaborative process might be. Along with this assessment, of course, will be consideration of all of the costs and risks of litigation.

Requirements for Lawyers

  1. Lawyers must have been in practice for a minimum of five years.

  2. They must complete a two-day Collaborative Law Center training program and such additional training as the Center requires.

  3. They must commit themselves to faithfully observing all of the elements of the collaborative law participation agreement.

Firm Disqualification

Is everybody in a lawyer's firm precluded from participating in the litigation in the event the collaborative law process is unsuccessful?

Yes.

Only in this way can parties be assured that there is no benefit to be gained by counsel in failing to succeed with settlement.

In-House Corporate Counsel

In-house corporate counsel is in the unique position of being both an attorney and a client simultaneously.

If the collaborative law effort fails, however, corporate counsel must retain outside lawyers to handle the litigation.

Why Lawyer Must Resign If Case Litigated

The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed. Thus, all participants are equally and fully invested in finding the solutions to all problems.

More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to, ceases to be a viable tactic.

Lawyer-Client Relationship

How is a lawyer's relationship with a client different in the collaborative law process, and how do lawyers prepare clients for it?

First, the lawyer never ceases to be the client’s advocate and the client is so assured. By entering into the participation agreement the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives).

Now the objective is to discern and attempt to satisfy the interests of both (all) parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires, and to listen carefully to those expressed by others.

Collaborative lawyers remind and reassure their clients that by treating the other side’s interests with respect, they are serving their client’s goals and interests. Collaborative lawyers are trained in collaborative communication skills and will assist the parties in this endeavor.

Only One Side Signs Agreement

Can one lawyer practice collaborative law if the other side has not signed a participation agreement?

It is assumed that in most cases the parties will proceed on a collaborative law basis only when all lawyers and clients have signed the participation agreement. Circumstances could arise, however, when one party and his or her lawyer might decide to contract with each other with the premise that the lawyer is hired only for settlement purposes, even when the other side has not signed a participation agreement.

For example, some lawyers might decide they do not wish to litigate and a client might still want their services, or some clients might be certain enough that litigation is not in their interests that they would choose to establish that limit up front.

It may also be a useful strategy for one party to approach another through their collaborative lawyer with a participation agreement already signed – it would demonstrate a clear intent to seek resolution through non-adversarial means and thus encourage a more open and less defensive response.

If Initiated by Non-Trained Lawyer

What if a trained collaborative lawyer is approached by a non-trained lawyer wishing to participate in the collaborative law process?

The participation agreement allows a non-trained lawyer to enter into a participation agreement with a trained collaborative lawyer (and with their clients) when the collaborative lawyer member is assured:

  • that the non-member can and will abide by the terms of the participation agreement,

  • become educated about the collaborative law process as prescribed by the Collaborative Law Center and 

  • agree to take part in future formal collaborative law training.

Different from Mediation

Mediation involves the use of a third party neutral in facilitating the negotiation and settlement of a dispute between the parties. Parties can always walk out of mediation and proceed to litigate.

In collaborative law cases, lawyers and their clients will talk and negotiate without the assistance of a third party neutral, unless they find such an intervention would be useful. They are committed to continuing the dialogue until a satisfactory solution is reached since litigation is not an option.

End Result of Case

With the advice and assistance of counsel, parties can conclude their discussions however they wish, and secure any agreements by whatever methods are appropriate.

They might walk away satisfied, with no further action needed.

They might end with some extra-judicial agreement or with some agreed court order or releases.

There are no formal limitations to what parties can agree to do to solve their problems.

Case Management Deadlines

 

It is anticipated that most collaborative law cases will be resolved prior to and without any court filings. However, stay motions have been developed for cases that have already been filed at the time the participation agreement is signed.

 

 

Statutes of Limitation

In collaborative law cases counsel and parties will cooperate with each other fully to prevent the necessity of any court filings while the collaborative case proceeds. This may involve agreements to toll the Statute of Limitations when possible.

The participation agreement provides for some limited court filings, as agreed upon and necessary to protect the parties’ interests, while the collaborative law case is in progress.

Attorney Fees

Representation and fee agreements between attorney and client are not directly affected by the participation agreement. Presumably, contingent fee agreements will continue and some form of quantum meruit provision can apply in the event of early termination of the representation relationship.

Impasse Resolution

Lawyers participating in the Collaborative Law Center have agreed to act as mentors for each other to assist in reviewing problem cases or situations.

Additionally, collaborative lawyers can agree to employ experts to advise both sides as to disputed facts or law.

Finally, collaborative lawyers and parties can hire a mediator at any time.

Disclosure of Non-Discoverable Matter

Unless otherwise agreed, by signing the participation agreement, the collaborative lawyer and his/her client agree to provide good faith responses to any good faith questions or requests for information by the other party.

In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues.

Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a collaborative lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context.

Disclosure of Privileged Matter

The informal “good faith question/good faith response” approach is not intended to require any party to disclose privileged information. Certainly a party is free to do so.

However, no such disclosure of privileged information – indeed, no disclosure of any kind made during the collaborative process – could ever be revealed to any court for any purpose except to enforce an agreement reached during the collaborative process.

Disclosure of Information Not Requested

Is a collaborative lawyer required to disclose information that the other side has not requested, but which may be important to the case?

No. The informal “good faith question/good faith response” approach is not intended to require any party to disclose information that has not been requested.

When the Collaborative Law Center set out to devise a disclosure approach that could occur without court supervision, a discovery requirement resembling “core discovery” under Fed.R.Civ.P. 26(a)(1) was considered but rejected. “Core discovery” and its supplementation requirements can lead to abuses that would naturally impede the collaborative law process, including one party inundating the other with mountains of information that will be of no use to the other party.

In the collaborative law process, the goal is to provide the parties with the information they believe they need to resolve their dispute – no more, no less. Thus, by instituting the “good faith question/good faith response” approach, the Collaborative Law Center’s participation agreement places the burden on the party seeking information to specify what information he/she, in good faith, will need to resolve the dispute without litigation.

Disclosure Problems Found Later

What if, later, after entering into a settlement as a result of a collaborative law process, a collaborative lawyer discovers that the other party failed to disclose information that should have been disclosed?

In this respect, a settlement agreement reached via a collaborative law process is no different from any other negotiated settlement agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. To address this concern, the participation agreement states that, in any settlement agreement reached during the collaborative law process, the attorneys and the parties may wish to recite the material facts upon which the settlement is based.


 

 

 

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