What is the goal of collaborative law?
The goal or purpose of collaborative law is to offer attorneys and their clients a structured, non-adversarial alternative to an adversarial system of dispute resolution. It guarantees consumers of legal services high quality, skilled legal counsel to assist in the evaluation and resolution of a problem, without litigation.
For whom is collaborative law a good idea?
Not every attorney will want or be able to practice collaborative law. Not every client will be willing to give up the adversarial contest. For many attorneys, however, their trial court experience has led to a belief that the commitment of their skill and time to a litigated case often does not achieve an outcome which is cost effective or even a good solution for their clients' problems. Similarly, many clients are looking for experienced legal counsel, knowledgeable guidance and skilled advocacy, but do not want litigation. For these attorneys and for these clients, Collaborative Law is an excellent option.
Can an attorney represent a client zealously if it is agreed in advance not to go to court?
By entering into a collaborative law participation agreement attorneys and their clients have thoughtfully agreed to limit the attorney's role within the contractual relationship to that of providing representation for settlement purposes, only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the collaborative attorney does not give up the role of advocate for his or her client. The collaborative law attorney is representing his or her client zealously, not only to achieve a short term goal, but to realize the best result in the long run.
Can a party terminate the process?
Nothing in the participation agreement precludes a party from terminating the collaborative law process and deciding to litigate. However, the clients will have been advised at the outset that doing so will require them to hire other counsel. The other party also will be trading his or her collaborative attorney for a litigator.
How is an attorney's relationship with a client different in the collaborative law process, and how do attorneys prepare clients for participating collaboratively?
First, the attorney never ceases to be the client's advocate and the client is so assured. By entering into the participation agreement, the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). Now the objective is to discern and attempt to satisfy the interests of both (all) parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak clearly about their own needs and desires, and to listen carefully to those expressed by others. Collaborative law attorneys remind and reassure their clients that by treating the other participant's interests with respect, they are serving their client's goals and interests. Collaborative attorneys are trained in communication skills and will assist the parties in this endeavor.
Can one attorney practice collaborative law if the other participant has not signed a participation agreement?
We will proceed on a collaborative law basis only when all attorneys and clients have signed the participation agreement. Clients and their attorneys may decide that they will use collaborative principles and use their best efforts to settle the case, however, the members of the Association of Collaborative Family Law Attorneys will term this non-adversarial process "working cooperatively". Unless the participation agreement is signed and there is a contractual obligation on the attorneys' part not to proceed with litigation for the clients, we are not truly working for our clients "collaboratively".
How is collaborative law different from mediation?
Mediation involves the use of a single neutral person (who may be an attorney, a mental health professional, or someone who has an interest in mediating) to facilitate the negotiation and settlement of a dispute between the parties. The mediator's goal is for the parties to reach agreement and, to that end, the parties usually are responsible for negotiate negotiating for themselves. The mediator cannot give legal advice to either of the parties; the parties may or may not be advised to seek independent legal counsel during their mediation. In New York, mediators are not required to be licensed.
