What is Collaborative Law?

Collaborative law is a structured process for settling disputes in a respectful, rational manner. Originally designed for divorcing couples, the process is now being used in employment, probate and other civil disputes. The process is designed to deescalate the level of conflict and promote reaching a rational resolution with a minimum of cost and damage to the parties’ relationship. The process also helps align the interests of the lawyers with the interests of the parties. Collaborative Law attorneys have undergone many hours of specialized training in techniques to deescalate conflict and help parties to go beyond positional bargaining and identify mutually-agreeable resolutions.

What are the elements of Collaborative Law?

With Collaborative Law, the parties sign a written participation agreement that outlines how settlement negotiations will be conducted. Ideally, the participation agreement will include all of the following agreements: 

• Participants will negotiate in good faith, disclose all pertinent information and communicate constructively and respectfully. 

• Communications and documents will be inadmissible in any future legal proceeding. 

• Negotiations will occur in face-to-face meetings between the disputants with their attorneys present. 

• Experts, if needed, will generally be neutral and retained jointly. 

• If the parties are unable to reach a negotiated resolution their attorneys (and their respective law firms) and neutral experts are disqualified from participating in any litigation. 

Can the parties agree to leave out some of these items from the participation agreement?

Yes, but the process is much more likely to be successful if all of the elements are included. Nevertheless, having some of the collaborative law elements is better than having none of them. 

What is the reason for the requirement that attorneys be disqualified if the parties go to court?

This element causes a profound shift in the dynamics of settlement negotiations. The incentives of the lawyer become aligned with their client’s, because the lawyer can only “win” if the disputants reach a satisfactory settlement. The lawyer no longer has any financial incentive to cut negotiations short and go to court. 

Does Collaborative Law really work?

Yes. Thousands of attorneys have gotten the training and joined the International Academy of Collaborative Professionals or a local practice group such as King County Collaborative Law. In the divorce field hundreds of attorneys around the country are now using Collaborative Law regularly, and there are numerous attorneys with busy practices who accept only Collaborative Law cases.

If Collaborative Law is intended to reduce attorney fees, why do attorneys embrace it?

The old litigation system is not sustainable. In the normal litigated case the only winners are the lawyers. Getting cases to settle is not the problem: according to the American Bar Association, over 98% of civil suits are settled before a judge or jury rules. So the issue is not if cases will settle, but rather how and when they will settle. In traditional litigation, cases usually settle only after all discovery is complete, all motions have been briefed and argued, and trial preparation is underway. In other words, cases usually settle only after most of the potential attorney fees have been billed and the parties have been subjected to the maximum amount of disruption, wasted time, and public exposure of confidential information. 

Litigation is toxic to society. Litigation is a drain on the justice system and public resources. Settlement in the course of litigation does nothing to repair the relationship of the disputants. The natural result of discovery disputes is to escalate, not deescalate, the dispute, so that once the process is complete the litigants are more alienated from each other than before the suit was filed. The paranoia and lack of transparency that litigation fosters poisons our culture; for example, lawyers routinely advise clients never to apologize or admit fault.

Is Collaborative Law suitable for all civil disputes?

Unfortunately not. If a party cannot be trusted to observe the participation agreement, or if the level of conflict is so high that personal safety is an issue, Collaborative Law will not work. 

Where can I find out more about Collaborative Law?

King County Collaborative Law and the International Academy of Collaborative Professionals.