06 Apr Understanding Collaborative Law
Collaborative Law is a means of dispute resolution whereby the parties and their attorneys work together to resolve the issues without involving or threatening adversarial litigation. Clients may opt out of the Collaborative Law process at any time so long as the client has not contractually limited their ability to withdraw. An attorney who agrees to represent a client collaboratively, however, is not permitted later to represent that client in adversarial litigation. A written agreement to work collaboratively to resolve the dispute is signed by the parties and their attorneys in the initial stage of the case. The collaborative agreement expressly eliminates adversarial litigation as an option for the attorney’s representation. Only by having the attorneys and their clients contractually agree in the initial stage of the case that they will not proceed to adversarial litigation or threaten litigation does the collaborative law concept have the best chance of succeeding.
Collaborative Law is focused on interest-based bargaining rather than position-based bargaining. Because parties typically have different interests, a win-win resolution is the goal to be achieved. With position-based bargaining, positions are staked out and only by compromise can the matter be solved.
The question is often asked as to why the attorney must withdraw from representing the client if the dispute is not settled. The simple answer is, if either party’s attorney can immediately file suit when things are not going well in negotiations, neither party will likely make every effort to resolve the case without litigation. If each party knows he or she must retain other counsel if the case is not resolved collaboratively, then each party will likely make the best effort to resolve the case amicably.
Undergoing Separation and Divorce is an emotionally draining experience even without court intervention. Litigation is not necessary for an equitable outcome to be achieved. Collaborative law enables parties to securely decide for themselves how their case will be resolved without unnecessary legal chaos. Attorneys assist with guidance and advice. Where appropriate, therapists, evaluators and neutral experts may be brought in to make recommendations and offer opinions and otherwise assist such that the dispute can be better resolved collaboratively. Collaborative Law, which has been used successfully in other jurisdictions for many years, hopefully will soon become a routine means of resolving family disputes in North Carolina. Considering the high emotional and financial costs of litigation, Collaborative Law is a refreshing change.