What
Are the Benefits of Collaborative Family Law?
- Collaborative
family law focuses on all involved parties reaching a mutually
agreed upon settlement of their disputes. The process results
in valuable benefits. It creates a cooperative environment where
communication remains open, which provides a setting where you
can work with your spouse to meet your children's needs -- regardless
of their ages. That helps set a tone for open communication
and reduced conflict in the future.
- It establishes
a team instead of adversaries. Your lawyer supports you; your
spouse's lawyer supports your spouse. But you all work together
and, in doing so, retain control of the process.
- In matters
requiring expert opinions, both parties can jointly hire one
independent consultant. That helps shorten the duration of the
case and reduce the overall expense.
- You and
your spouse shape the agreements together -- which means you
both are more likely to keep them. That diminishes the parental
conflict the adversarial system generates and helps protect
children from facing the anguish and divided loyalties that
result.
- You can
schedule meetings without waiting for court dates. That means
you generally spend less time and, as a result, less money to
reach closure. It also means you reduce the fear and anxiety
associated with court proceedings.
- Your issues
stay within the collaborative law setting. That gives you more
privacy and greater confidentiality -- and less stress during
an already stressful time.
- Collaborative
family law focuses on all involved parties reaching a mutually
agreed upon settlement of their disputes. The process results
in valuable benefits.
- It creates
a cooperative environment where communication remains open,
which provides a setting where you can work with your spouse
to meet your children's needs -- regardless of their ages. That
helps set a tone for open communication and reduced conflict
in the future.
- It establishes
a team instead of adversaries. Your lawyer supports you; your
spouse's lawyer supports your spouse. But you all work together
and, in doing so, retain control of the process.
- In matters
requiring expert opinions, both parties can jointly hire one
independent consultant. That helps shorten the duration of the
case and reduce the overall expense.
- You and
your spouse shape the agreements together -- which means you
both are more likely to keep them. That diminishes the parental
conflict the adversarial system generates and helps protect
children from facing the anguish and divided loyalties that
result.
- You can
schedule meetings without waiting for court dates. That means
you generally spend less time and, as a result, less money to
reach closure. It also means you reduce the fear and anxiety
associated with court proceedings.
- Your issues
stay within the collaborative law setting. That gives you more
privacy and greater confidentiality -- and less stress during
an already stressful time.
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What is the Goal of Collaborative Law?
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.
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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 the stress
and excuse of litigation. For these lawyers and these clients,
collaborative law is an excellent option.
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Can
a Lawyer Represent a Client Zealously If It Is Agreed in Advance
Not To Go To Court?
By
entering into a Collaborative Law Participation Agreement lawyers
and their clients have thoughtfully agreed to limit the lawyers
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.
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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.
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How
Does a Lawyer’s Assessment of the Likely Outcome of the Client’s
Case if it Litigated, Affect the Way the Lawyer Approaches a Collaborative
Law case?
Although
the participation agreement prohibits threatening litigation,
the lawyer’s advice strengths and weaknesses of the case showed
and included an assessment of the likely outcome if the case were
to be litigated. Application of the law and client’s legal rights
is a fair and appropriate outcome in a collaborative process this
assessment, would also include consideration of all of the costs
and risks of litigation.
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Is
Everybody in the 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.
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Can
In-House Corporate Counsel Take Part as a Collaborative Lawyer?
Yes.
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.
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Why
Must a Lawyer Resign If The Other Side Decides to Go to Court?
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 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.
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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.
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Can
One Lawyer Practice Collaborative Law If The Other Side Has Not
Signed A Participation 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 their lawyer 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. This would
demonstrate a clear intent to seek resolution through non-adversarial
means and thus encourage a more open and less defensive response.
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What
if a 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 Institute 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 Institute of Georgia and
agree to take part in future formal collaborative law training.
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How
Is Collaborative Law 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 with
or without the assistance of a third party neutral, unless they
find such an intervention would be useful. In mediation, the neutral
cannot be an advocate for one party over another, or propose a
possible outcome if the case is litigated. Mediators are committed
to continuing the dialogue until a satisfactory solution is reached
since litigation is not an option.
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What
Is The End Result of a Collaborative Law Case? How Are Interests,
Rights, and Agreements Secured?
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.
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How
Does the Practice of Collaborative Law Affect Attorney Fees?
Representation
and fee agreements between attorney and client are not directly
affected by the participation agreement.
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What
Can Collaborative Lawyers Do If Negotiations Reach Impasse?
The
Collaborative Law Institute of Georgia is based on an interdisciplinary
network model. Collaborative lawyers can agree to employ experts,
such as therapist and financial experts, to advise both sides
as to disputed facts or law. The participation of interdisciplinary
network professionals can help move the case forward toward solutions.
Finally, collaborative lawyers and parties can hire a mediator
at any time.
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Is
the Collaborative Lawyer Required to Divulge Even Non-discoverable
Information During the Collaborative Law Process?
Unless
otherwise agreed, by signing the participation agreement, the
collaborative lawyers and clients 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.
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If
Information Is Requested in Good Faith but Is Otherwise Protected
from Disclosure by a Privilege, must a Collaborative Lawyer Disclose
It?
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. 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.
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Is
a Collaborative Lawyer Required to Disclose Information That the
Other Side Has Not Requested, but Which May Be Important to the
Case?
Yes.
The informal good faith question/good faith response approach
is intended to require any party to disclose information that
may be relevant to the settlement of the case. The parties and
attorney are committed to preventing 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 needed to resolve
their dispute.
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What
Happens If a Party Doesn’t Fulfill its Disclosure Obligation under
the Participation Agreement?
Participation
in the collaborative law process is based on the requirement that
the parties to the participation agreement (both attorneys and
clients) have acted in good faith and have provided accurate information
as required under the good faith question/good faith response
approach. Thus, a party’s refusal to fulfill its disclosure obligation
under the participation agreement will make it impossible for
the parties to reach a fair resolution. When an attorney learns
that his/her client has withheld or misrepresented information
that should have been disclosed, the participation agreement requires
the collaborative lawyer to withdraw.
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What
If, Sometime 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. Any settlement agreement
reached during the collaborative law process, the attorneys and
the parties should recite the material facts upon which the settlement
is based.
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What
if the Settlement is Not Achieved Cooperatively?
In
the event the parties are unable to arrive at a settlement through
the Collaborative Law Process, the lawyers withdraw from the case
and the parties are free to retain trial attorneys to pursue their
matter in court. The result is that the parties will have the
best representation for each phase of the proceeding, and possibly
save time spent in a subsequent, costlier trial.
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For
What Type of Client Does Collaborative Law Work?
People
who have at least "a little good will" toward wanting to work
out a settlement are candidates for a collaborative law approach.
Without that small bit of openness in the process, collaborative
law will probably not work. Collaborative law requires clients
who want to make their own decisions regarding their lives, and
who are capable of seeing more than one way to resolve an issue.
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