Collaborative law is totally outside the courtroom, except for agreed upon mandatory filings necessary for a dissolution filing. The basic elements of collaborative law are as follows:
- There is a written agreement (collaborative contract) signed by clients and lawyers whereby they agree none will make use of the court process during the collaborative process.
- Parties use good faith problem-solving skills to obtain an end result for the parties.
- Neither party may participate in any litigation against the other party/client after signing on as the collaborative attorney.
- Collaborative lawyers are essentially fired if one of the parties/clients chooses to litigate instead of using the collaborative process.
- Each party has their lawyer by their side and actively participates in all the collaborative meetings.
- Experts may be retained and when they are, they act as neutrals and they are also barred from participating in litigation.
While collaborative law may initially seem similar to mediation as it is both interest-based, it is not the same thing. Collaborative lawyers are advocates and not neutrals as in the mediation process. Collaborative attorneys learn constructive methods of assisting clients to advocate and prioritize the needs of the parties. It also differs as the risk of failure is equalized to the lawyers as well as the clients. If one of the clients chooses to litigate then the collaborative lawyers are no longer needed and, therefore, effectively “fired”. The is an added incentive to all the parties to become effective problem solvers.
The benefits of collaborative law are many and they include:
- Privacy and confidentiality
- The ability to be creative in the final settlement
- Ability to focus on children and “think outside the box”
- Keeps cases out of the courtroom
- Clients have control over the process