COLLABORATIVE LAW AND THE HISTORY OF METHODS OF RESOLVING FAMILY LAW CASES—by Leonard M. Roth and Jack H. Emmott III
Once the Court is notified of the parties decision to proceed collaboratively, statutory events occur. Presto! The court must NOT set a hearing or trial in the case, impose deadlines, require compliance with scheduling orders, and must NOT dismiss the case for two years, if you need it. Only an Agreed Decree or Agreed Order is filed at the end.
The Participation Agreement is the road map, the Bible of the Collaborative Law process. The Participation Agreement is read, word for word, out loud, by the attorneys and clients at the first joint session. All questions are asked and answered and, if completely understood, the Agreement is signed.
The court must be notified of any settlement during the Collaborative Law process. There is a 6-month and a one-year status report that must be filed basically stating the parties' desire to still proceed collaboratively. This creates an environment for a pressure-free resolution.
If the process fails for whatever reason (the attorneys must withdraw) or is not successful within 2 years of the commencement of the filing of the case, the court is allowed to set the suit for trial on the regular docket or dismiss the suit without prejudice to re-filing (you can re-file and start over in litigation at great expense). No, the Court does not have the authority to allow you to continue in the collaborative process.
Collaborative Law is so successful because of what clients gain by participating in the process and not litigating (where none of the following rewards are available): (1) clients are in charge of their own case and destiny and control the process. (2) clients' children and the clients are protected emotionally and financially to the greatest degree possible. (3) clients' cases are completely confidential. (4) most relationships between spouses, friends, and family are preserved. (5) if desired, trained professionals are brought in to help handle additional issues as they arise. (6) self-esteem is preserved by the parties. (7) clients and attorneys feel good about the process. (8) friends, relatives, and your children see how responsibly, rationally and maturely the parties have handled this traumatic event. (9) the parties are not disenfranchised from organizations and religious institutions. (10) no witnesses are called to take sides. (11) no experts are hired to advocate your side. (12) the parties can continue in a necessary relationship that is much better than at the beginning of the lawsuit and carry on. (13) because the process requires the parties to talk face to face, reconciliation is more prevalent.
The differences in adversarial versus collaborative are profound. One wonders, if given the choice, why any rational person would opt for litigation. Full and complete disclosure throughout the case is agreed to and complied with without objection. If the client violates the Participation Agreement, the attorney withdraws and the parties proceed through the adversarial system. The attorneys remain advocates for his/her client's positions. Yet, the attorneys are not adversaries. Each act as an advisor on the collaborative process and on issues of law for their respective client. In Collaborative Law, the clients are the sole focus of the process and their needs are paramount. The trial lawyer must be willing to give up control to the clients. The mantra of all Family Law trial lawyers has been that we control the process, the procedure and the trial of the case and the client controls the rest. In actuality, "the rest" leaves the client almost nothing in determining the most important event of the client's life. Collaborative Law returns the power to the client to determine the client's destiny, where it should be.