Frequently Asked Questions
Once clients and their attorneys agree to use Collaborative Law, the attorneys will confer and arrange a meeting when the Collaborative Participation Agreement will be openly agreed to and signed. At this initial meeting (called a “four-way”), any issues requiring immediate attention will be discussed. If there is specific information or documents that one party needs from the other in order to engage in meaning discussion and negotiations, then agreements on information sharing will be made.
Afterwards, each client and attorney will develop a list of issues they believe need to be addressed in order to reach a settlement of the dispute. The attorneys will share their respective lists and develop the agendas which will guide discussions at subsequent meetings. In a series of two, three or more meetings, the clients and their attorneys will discuss and negotiate the issues which underlie the dispute. Using collaborative and mediation skills, attorneys assist both the clients in their communications and negotiations while at the same time providing their clients with legal advice and guidance. The four-way meeting process is designed to ensure that the interests of the clients are respectfully addressed so that upon settlement, the agreement reached recognizes those interests, is acceptable and lasting.
All collaborative cases have two attorneys. In my opinion, the most effective and efficient collaborative processes use a neutral coach. The coach is particularly important in cases where there are parenting issues. In addition, a child specialist may have a limited role to provide information from the children’s perspective so parents can make informed decisions. Most collaborative cases will involve a financial neutral to efficiently gather and analyze financial data.
Generally, the collaborative team (attorneys, clients, coach and financial neutral) will gather to work on issues as a group. Meetings will include the professionals appropriate to the topic so, for example, financial professionals may not be necessary when residential schedule issues are being discussed. Face to face meetings are preferred but in rare cases, accommodations such as separate rooms may be appropriate.
The Collaborative Law process provides a safe and structured environment for people in dispute to communicate and negotiate with each other while represented by lawyers whose interest is in assisting their clients towards resolution. The process itself is designed to encourage creative problem-solving. Often when a dispute is settled using Collaborative Law, the agreement is better matched to the needs of the clients than the result they would have received from a judge or arbitrator.
Because it is common for two years to pass before a case goes to trial, it is often possible to resolve a dispute faster using Collaborative Law. Also, Collaborative Law is designed to avoid most of the problems usually associated with litigation such as the high cost and time-consuming nature of trial preparation, the wide-ranging and often invasive discovery into one’s personal life or business activities, and the adversarial, hardball approach that fosters greater animosity between clients.
There are times when the Collaborative Law process does not succeed when one person is not willing or able to listen and negotiate in good faith, for instance. In those cases, new attorneys will be retained to litigate the case.
It is impossible to predict this because the facts of each case differ and the willingness of the parties to reach agreement has a significant impact on cost. Clients are often alarmed by the cost implications of the collaborative team process. It is frequently compared to the cost of just hiring an attorney in a cooperative or adversarial process. I think this is a false comparison. The advantage of the collaborative process is that you will have a pretty good idea of what is involved up front. While it may seem expensive to have two attorneys, a coach and a financial neutral communicating with each other and present at negotiations, you will know from the outset what is involved and the team will work together to make the negotiations effective and efficient. Contrast that with more adversarial processes where you start out with an attorney who then recommends or requires that you hire various experts or analysts. The length of the process is controlled by two parties working at odds with each other rather than together. You lose a significant amount of control over the approach and the cost. Even when parties start out with attorneys who are working cooperatively, it may not stay that way, and then cost is driven by the need to react rather than a desire to reach a resolution.
The answer to that will depend on the complexity of your issues and the degree of your commitment to work together toward a settlement. In the collaborative process, you have a good deal more control over the length of the process because you are both working together for a result with the support of a team who are working to remove obstacles that might impede progress. In adversarial processes, delay may be used as a tactic and you will have less control over the length of the process.