Collaborative Law is a refreshing new approach to law that is catching on with both clients and practitioners alike. It is a "process option," just like mediation or traditional representation are options for going through the divorce process.
There are a number of benefits of Collaborative Law, including:
- Avoid Court: Collaborative Law participants do not go to court. In fact, the participants sign an agreement committing to resolve the case entirely outside of court.
- Legal Advice: One of the key features of Collaborative Law is the presence of attorneys who can provide legal advice to their clients during face-to-face negotiations (called "4-way" meetings). In divorce mediation participants typically will not get legal advice unless they hire a consulting attorney.
- Negotiating Partner: The collaborative attorney acts as a negotiating partner with his or her Collaborative Law client. This is different from divorce mediation where attorneys often do not participate directly in the mediation and it is up to the client to negotiate for him or herself.
- Client Control: Collaborative Law allows participants to retain control over their own agreement rather than leaving it up to a judge who is not familiar with their family. Further, Collaborative Law allows people to make highly specialized agreements that work best for their family which otherwise could not be ordered by a court due to a court’s limited authority.
- Client Satisfaction: Collaborative Law participants report high degrees of satisfaction with the process as well as the outcome compared to litigation clients. Even if litigants are satisfied with the outcome of a case, they are often dissatisfied with the cost, stress, uncertainty and acrimony associated with litigation.
- Maintain Your Privacy: Collaborative Law is a private process, unlike litigation which plays out in a public courtroom. Further, litigation often generates many public documents that include allegations and other "dirty laundry."
- Your Own Timeline: Collaborative Law participants create their own timeline. The case can move at the pace that best suits their family. Litigation clients are subject to the timeline and appearance requirements of the court system.
- Preservation of Relationships: The preservation of relationships is often important to clients, especially when kids are involved. One of the reasons Collaborative Law works so well is because it assists the parties in communicating with each other. Participants often report they have not communicated so well in years.
Collaborative law has a simple premise: All participants sign an agreement committing to negotiate the entire case outside of court. The agreement contains a disqualification provision that requires both attorneys to withdraw if either client initiates court proceedings. Technically speaking, Collaborative Law is a "limited services" representation. Oregon Rule of Professional Conduct 1.2(b) provides, "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent."
A review of the above rule reveals two things: First, collaborative representation must be appropriate for the case at hand. The collaborative attorney must screen the case and attempt to determine if there are any reasons why the case could not or should not proceed collaboratively (e.g., domestic violence). Second, the client must give his or her informed consent prior to entering the process. The purpose of informed consent is to make sure the client understands that the role of the attorney is strictly limited to negotiating on the client’s behalf and that the attorney will not proceed to court under any circumstances (except to file the final stipulated judgment).
A Collaborative case begins with the "first four-way" meeting. This meeting is largely procedural; the goal is to make sure that both clients understand the Collaborative process and are voluntarily entering the process. All participants will sign the "participation agreement" at this first meeting. A case is not officially a Collaborative case until the agreement has been signed. At the end of the meeting a follow up meeting will be scheduled and an agenda set. Items of "homework" will be given to complete in between meetings – this typically includes gathering information relevant to the upcoming agenda items. A typical case may take between three and six meetings, though the total number of meetings depends on the number and complexity of issues and how well the clients can work together.
A Collaborative case looks very different from a traditional case. For example, most (if not all) of the work takes place in the four-way meetings. Attorneys get on the phone to discuss issues rather than sending letters. Full disclosure of all relevant information is mandatory (thus avoiding the potentially expensive discovery process). Attorney-client privilege still exists; however, if the client discloses to the attorney a secret that the attorney deems relevant to the case, the attorney is required to have the client share that information with the team or the attorney will have to withdraw from the process. (Note: Entire law review articles are devoted to this last sentence; this is just a brief overview.)
There are two kinds of Collaborative cases: lawyer-only and interdisciplinary. Lawyer-only is what it sounds like – the process consists of two clients and two lawyers. Interdisciplinary Collaborative Law involves the use of other professionals in addition to the attorneys. In family law cases, the additional professionals include the divorce coach; the child specialist; and the financial specialist. These roles are optional – each case can be tailored to the specific needs of the family. All professionals and clients on the team sign waivers allowing each member of the team to communicate directly with one another about the case.
For all of its benefits, Collaborative Law is not for every situation and every client. For starters, divorcing couples who cannot stand to be in the room with one another are probably not good candidates for this process. Just because this is "collaborative" does not mean it is easy. Clients are required to address the difficult issues of their case head on rather than have their attorney deal with them. Additionally, cases where serious substance abuse or mental health issues are present may be particularly challenging (although arguably the Collaborative process is going to be the best option because the client can get the professional assistance he or she needs). Lastly, cases where active domestic violence is present are not going to be appropriate for Collaborative Law.
One criticism of Collaborative Law is that it is unaffordable for many people. To some degree this is true. There has been much discussion amongst the Collaborative bar about how to make this process more affordable, including how to make it available in low-income clinics (the problem so far has been the disqualification provision; if the clinic becomes disqualified, the low-income participant will have nowhere else to turn). Some practitioners are willing to reduce their rates where appropriate on account of the fact that they believe in the process so much. In the experience of many Collaborative practitioners, however, a Collaborative case is typically less expensive than a litigated case.
Another criticism is that the disqualification provision leaves people having to start the process over with new attorneys. This provision, to some extent, provides a disincentive to terminate the process. Realistically, Collaborative Law has a high success rate regardless of this provision. In the event the case fails clients can still take the agreements they have reached and incorporate them into their future judgment.
There is a misconception that "working together" is the same thing as practicing Collaborative Law. This is simply not the case. It is local practice that an attorney must have a 12-hour Collaborative Law training that meets the curriculum set forth by the International Academy of Collaborative Professionals (IACP). At this training practitioners learn, amongst other things, about what is called the "paradigm shift." The paradigm shift refers to the shift that takes place in your approach to representing your client. The role of the Collaborative Attorney is to support the client in their own constructive problem-solving rather than advocating on behalf of the client.