Duhaime's Law Dictionary


Collaborative Law Definition:

A family law dispute resolution encouragement process set in writing which includes a promise to negotiate in good faith, to engage in the exchange of private and confidential information on a without prejudice basis, and a motivational commitment that the participating lawyers or law firms would withdraw if the negotiations fail.

Related Terms: Collaborative Law Participation Agreement

A model for the out-of-court resolution of issues arising from the breakdown of a family unit such as child custody and guardianship, child support and alimony, and the identification, valuation and division of matrimonial property.

The  International Academy of Collaborative Professionals defines collaborative law as follows:

"Collaborative law ... consists of two clients and their respective attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues.

"All negotiations take place in four-way settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer's job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process, but all the decisions are made by the clients. The lawyers generally prepare and process all papers required for the divorce (based on the settlement).

  • "The parties sign a collaborative (law) participation agreement describing the nature and scope of the matter;
  • "The parties voluntarily disclose all information which is relevant and material to the matter that must be decided;
  • "The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement;
  • "Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding; (and)
  • "The parties may engage mental health and financial professionals whose engagement terminates upon the undertaking of any contested court proceeding."

Canadian collaborative law specialist Mary Mouat, Q.C. wrote of the process in the context of family law, as follows:

"Collaborative family law is a settlement based, team approach to family disputes. The collaborative family law process uses a team approach to resolve disputes more efficiently; this approach includes lawyers, divorce coaches, a neutral financial specialist and, as necessary, a child specialist.

"All the participants to the collaborative process sign Participation Agreements which confirms the out of court approach.

"The collaborative process works towards a negotiated settlement and strives to facilitate respectful communication and avoid the acrimony which can result from the adversarial process."

Collaborative law is a concept developed by a Minneapolis family law lawyer named Stu Webb in about 1983. His model, once presented to a national conference, was quickly accepted.

As Ms Mouat noted op cit., the model includes the construction of a network of local support professionals, such as child psychologists or accountants, to assist the lawyers and their clients in incorporating the collaborative philosophy in services often ancillary to the proper resolution of a family law dispute.

Collaborative law is triggered by a unique contract, referred to as a Collaborative Law Participation Agreement.

The divorce itself cannot be achieved by contract and does require a court order but at the conclusion of a collaborative law process, the divorce application is often made on a joint basis by both separating spouses, or on an undefended basis relying on the terms of the separation agreement arrived at within the collaborative law process. The separation agreement arrived at within the collaborative law process, like any separation agreement, constitutes private law between the parties and would not likely be disturbed by a Court of law. Indeed, may jurisdictions allow a separation agreement to be filed with a local Court, at which time the separation agreement "is enforceable ... as if it were contained in an order (of the Court).1

The most significant advantages of the collaborative law process are that the parties create their own law between them, to manage post-separation issues, instead of having a resolution imposed upon them in the adversarial court system of family law litigation. No less important are the legacy issues as a successful collaborative law process as it impacts throughout the relationships of other, silent parties of interest such as the children. A successful collaborative law process sets a precedent for future dispute resolution and often contains a process for resolving future disputes.

There are two main disadvantages to the collaborative law process:

  • The parties are expected to compromise. This expectation does not always meet the personalities of the litigants or their lawyers. One personality type may suggest "more to get less", a common negotiation technique, but one which is unfair to the other individual who, rather than ask for more to get less, simply puts forward his or her honest proposal. In the result, compromise between two such different positions results in a net disadvantage to one of the parties.
  • If the collaborative process fails, each litigant will still have to pay their collaborative lawyer's legal fees as well as a new set of fees for the different lawyer that would have to retained and briefed on the relevant facts, in order to advise on litigation.

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