Collaborative Practice and Collaborative Law

Today I am continuing in my series on the alternatives in Alternative Dispute Resolution (ADR). Thus far in the series, I’ve primarily focused on processes that use a neutral facilitator, often a mediator. Today I’m going to switch gears and discuss a process that does not use a facilitator, rather professionals who have additional training in ADR that qualifies them to concurrently use their professional training and specialized ADR training to have a full complement of processes to resolve the legal conflict. Collaborative practices is one of those processes.

Definition and Components:

 Collaborative Practice is a voluntary dispute resolution process when parties settle without litigation.  The process requires:  that the parties sign a collaborative participation agreement, disclose all relevant information, agree to use good faith negotiations, and be represented by a lawyer with sufficient training in the process who also will not represent the party in the litigation.  The process may involve additional experts, including mental health and financial professionals.

Unique qualities:

Lawyers participate and provide legal advice to their clients in the presence of all parties.  The parties agree to provide all relevant information and to reach an agreement through the process or retain new attorneys. 

Steps or stages:

The process begins when parties sign a participation agreement when meeting with the team initially.  The alternative dispute resolution lawyers and clients, and other members of the team convene a series of four-way meetings, and the team works to resolve the legal issues to the satisfaction of all parties.  When an agreement is reached, the attorneys may continue representing the parties when court approval of an agreement is required.  When the parties cannot reach an agreement, the team terminates the process and the parties retain new counsel.

Advantages:

·      Parties have control and create their outcome.

·      A decision is not binding until the parties reach an agreement and it is adopted by the court, in some areas.

·       Decisions are fully informed.

·      Generally less expensive and less time consuming than litigation.

·      Some participants report reduced stress and anxiety.

·      The team approach to address the legal, financial, emotional, and parenting aspects allow for more significant resources in resolving difficult problems.

·      Agreements tend to be created by the family, and they are often more sustainable.

·      Confidential.

 Disadvantages:

·      Parties who cannot reach an agreement must obtain new counsel.

·      When the parties need additional resources through a financial neutral or mental health professional and do not have those resources, it is difficult to get a superior resolution.

·      Insufficiently trained professionals are available to provide adequate choices for parties to select this method.

 Best for: 

Wills and estates, health care disputes, employment, business, and family disputes.  Has been used successfully in civil litigation.

For more information:

Stuart Webb and Ronald Ousky, The Collaborative Way to Divorce, (2006).

Pauline H. Tesler, Collaborative Law (3rd Ed. 2016).

 Ethical Standards for Collaborative Practices

Sample Form-Sample Participation Agreement

To locate professionals in your area: https://www.collaborativepractice.com/members

Contact Brenda Waugh for alternative dispute resolution in West Virginia, Virginia, and D.C.