The Essence of the Collaborative Law Process

The most distinguishing feature of a Collaborative divorce and of the Collaborative process, in general, is the strong intellectual, emotional and financial commitment by all participants, from the very start of the process, to attaining a mutually acceptable settlement of all disputed matters without going to court. That commitment is formalized at the very first meeting when the Collaborative parties and their respective Collaborative lawyers thoroughly review the terms of and the parties then enter into a formal Participation Agreement.

The Participation Agreement stipulates that the sole goal of all participants in the process is to reach or assist the parties in reaching a negotiated settlement, out of court – without even the threat of going to court – in an honest, dignified and respectful manner, based not on the threats or demands of the parties, but on the underlying legitimate needs, concerns, fears and goals of both parties. A key structural component of the Collaborative process is the so-called “disqualification” provision which says that if the Collaborative process terminates, for any reason, without the parties having reached a mutually acceptable agreement, their lawyers – as well as any other professionals who may have participated at some point in the process – may not continue to represent or assist the parties in court.

The disqualification provision creates a built-in financial, intellectual and emotional incentive for everyone to put the maximum effort into reaching the very best negotiated settlement agreement the parties are able to make. Every participant, including the parties’ Collaborative attorneys, has a stake in the outcome of the Collaborative process.

If a negotiated agreement is not attained for any reason, the Collaborative lawyers are literally out of a job. They are forbidden from representing their Collaborative clients in court. Likewise, if no settlement is reached, the parties, in most cases, will need to hire attorneys who, at least initially, are completely unfamiliar with their clients’ cases, to represent them in an often difficult, stressful, time-consuming and expensive adversarial process which is the hallmark of the conventional legal system.

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