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Collaborative Law As An Option in Divorce

A group of almost 100 lawyers in the Boston area is actively exploring and practicing a new way to resolve disputes in which the lawyers behave differently-they swear off litigation as a solution to any issue. Instead, they engage the disputing parties in a face-to-face process aimed at finding resolution to the conflict through collaboration-a respectful, problem solving, creative and informed dialogue that seeks private, relationship-driven and efficient solutions. It's called Collaborative Law. Groups of lawyers practicing collaborative law also exist in cities such as Atlanta, Cincinnati, Dallas, Minneapolis, and San Francisco.

A collaborative law dispute resolution process involves the following elements (all embodied in an up-front written agreement):

Litigation Prohibited. The lawyers contractually limit the scope of their engagements-if the process breaks down, the lawyers (and their firms) are disqualified from further representation of those clients. If litigation has been commenced, it must be suspended while the collaborative process is under way. In either case, a failure to reach an agreed resolution disqualifies the lawyers engaged in the collaborative law process from participating in litigation of the matter. By changing the role of the lawyer from gladiator-strategist for beating the other side-to collaborator-participant in problem-solving, brainstorming and guiding negotiations, the entire resolution process is altered. If the process breaks down (by a party failing to participate as agreed, withdrawing or seeking any court relief), the parties have reserved their rights to litigate, and they may proceed to do so with new lawyers.

Control by Clients/Participation by Clients. Clients are in control in a collaborative law dispute resolution process-in control of the schedule; in control of the agenda; and, ultimately, in control of the resolution that meets their needs, and in the case of divorce, those of their children. The collaborative law process involves face-to-face negotiating sessions with the decision-making clients and their lawyers in the room. The parties know their respective interests and needs better than anyone, and this process seeks to put those interests and needs center stage and on the same stage in order to find a solution.

Separate Representation. Each party has a lawyer-an advocate to answer questions about the law, to assist in negotiations and to problem solve with the client and other parties.

Information Exchange (formally known as “Discovery”) is Prompt and Complete. Parties agree, as part of the process, that they will make full and timely disclosure of all relevant information-no hide the ball; no stonewalling.

Experts Jointly Retained. Experts in the collaborative law process are retained by all the parties, again, to inform the process and the participants. Divorcing parties may hire a therapist to help them address parenting issues, or an appraiser to value the family business. If the process breaks down, the experts are disqualified from future court proceedings, unless the parties agree otherwise.

Commitment to the Process. In addition to committing to all of the above, the parties agree to engage in the process in good faith. Vigorous negotiation is expected and encouraged. Options are fully explored.

Collaborative Law has been most frequently applied in divorce law, though it is also being brought to employment and business disputes. In Boston, the Collaborative Law Council, Inc. is actively exploring its application to disputes in family-owned, closely-held and start-up businesses; customer, supplier, and “partner” disputes, debtor/creditor workouts, landlord/tenant disputes, environmental disputes, real estate development and zoning conflicts, and estate and probate contests.

To obtain a list of Collaborative Law attorneys in the Boston area, go to www.collaborativelawcouncil.com.

The above article is co-authored by Doris F. Tennant, Esq., Collaborative Law, Newton, and Douglas C. Reynolds, Esq., The New Law Center, Belmont.