Avoiding Court Coupled With Confidentiality And The Comfort of Legal Representation ...

Collaborative Practice is a new way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court. The term encompasses all of the models that have been developed since Minnesota lawyer Stu Webb created the Collaborative Law model in the 1980s. This model is at the heart of all of Collaborative Practice. Each client has the support, protection and guidance of his or her own lawyer. The lawyers and the clients together comprise the Collaborative Law component of Collaborative Practice.

While Collaborative lawyers are always a part of Collaboration, some models provide child specialists, financial specialists and divorce coaches as part of the clients’ divorce team. In these models the clients have the option of starting their divorce with the professional with whom they feel most comfortable. Therefore, the clients benefit throughout collaboration from the assistance and support of all of their chosen professionals.

Although Collaborative Practice comes in several models, it is distinguished from traditional litigation by its inviolable core elements. These elements are set out in a contractual commitment among the clients and their collaborative professionals to:

• negotiate a mutually acceptable settlement without using court to decide any issues for the clients
• withdrawal of the professionals if either client goes to court
• engage in open communication and information sharing, and
• create shared solutions that take into account the highest priorities of both clients.

Collaborative Practice is a client-centered and client-controlled process that begins with an assessment of the individual needs of each client. In response to those needs, the Collaborative Practitioners selected by the clients provide them with professional services using an integrated approach. This approach creates a supportive, problem-solving environment where the clients can negotiate their own agreements face to face, assisted by their Collaborative Practitioners.

Collaborative Practice strives to provide clients with the support, information and structure they need to reach agreements that are voluntary and of maximum mutual benefit. To achieve this goal, collaboration begins with and emphasizes education prior to negotiation, explores common goals in place of divisive positions, and creates a safe environment for constructive conversation.

The Collaborative participation agreement that the clients and professionals sign, at the start of collaboration, mandates that any Collaborative Practitioner in the case must withdraw from representing or assisting either client if either client engages in any form of litigation about the dispute. This requirement mitigates the negative impact of the power-based procedures inherent in the adversarial court model. At the same time, it encourages continuing efforts to find creative solutions in the face of apparent negotiation impasse.

To reach agreements that are of greatest mutual benefit, and to ensure the integrity of the process, the clients and their professional practitioners must freely disclose all relevant information. The Collaborative Practitioners help each client make fully informed, intelligent and voluntary decisions. The commitment to full disclosure and the withdrawal requirement are essential elements of a safe process.

Collaborative Practice represents an opportunity for clients to achieve their best at a time when circumstances frequently encourage fear of the worst. Through professional teamwork that involves clients as working partners, the possibilities for successful resolution are maximized.