What Collaborative Practice is & What it is not
November 17, 2019
Collaborative Practice is:
- A process that requires two collaboratively trained lawyers. The Collaborative training is typically two to five days depending on the jurisdiction.
- A process that requires a Participation Agreement to be signed. This agreement has a disqualification clause which means the lawyers must withdraw as lawyers if the matter proceeds to litigation. The Participation Agreement also contains a positive obligation to maintain the status quo with respect to parenting and finances. This is paired with a requirement for full and voluntary financial disclosure.
- An interest-based negotiation process where interests and the law matter.
- Communication protocols for lawyers and the team. An example of this is telephone calls in the place of letters.
- Focused settlement meetings with clear agendas and post-meeting process notes.
- A closed settlement process; meaning what happens in the Collaborative Process stays in the Collaborative Process. This is aside from the ‘hard’ disclosure documents such as tax returns and agreed upon valuation reports, etc. This is the same as a closed mediation process.
- An inter-disciplinary team process which means that in addition to the two lawyers, the team can include one or more of the following: a family professional, a mediator or a neutral financial professional – either a financial divorce specialist, or a certified business valuator.
- A preparation for clients to participate in the settlement meetings, which includes coaching clients on how to listen respectfully, and how to speak to increase the likelihood of being heard.
- A finish with the joint drafting of a Separation Agreement by both lawyers and signing by the clients.
Collaborative Process is NOT:
- A way for clients to avoid financial disclosure.
- A way for clients to avoid legal responsibilities.
- A process that allows clients to hide behind their lawyers.
- A process for lawyers to advocate using positional bargaining tactics (threats, delays, and ultimatums).