Union Leader: KNOW THE LAW – Collaborative Law – 12/2009

December 28, 2009

This question was answered by Margaret Kerouac of the McLane Law Firm

Q:  Since I own a business, I am concerned about the disclosure of competitive and financially sensitive information to the public.  I am considering the “collaborative process” for my divorce because I heard that it is faster and less intrusive.  What is collaborative law?

A:  Collaborative law is often faster and less expensive than the traditional court process.  It is also less intrusive.  It is a private process, so the public would not have access to any discussions or any documents exchanged.  The collaborative process gives parties an opportunity to resolve disputes through creative, good faith, non-adversarial negotiation sessions.  Collaborative attorneys are trained in a special set of negotiation skills, including the ability to foster positive, respectful and cooperative communications during collaborative sessions.  The lawyers work with their clients and each other cooperatively to ensure that the negotiations are fair, balanced, positive and productive.  These are important skills, particularly in situations where the parties have children and continued communication will be important.

A hallmark of the collaborative process is the agreement that neither party will go to court or threaten to go to court.  In fact, the parties and attorneys enter into a four-way agreement providing that they will not to litigate the matter and all professionals (such as attorneys, appraisers, and financial consultants) will withdraw if either party proceeds to litigation.  This agreement provides an incentive for the parties to work toward a resolution, as it is to neither party’s benefit to lose the work accomplished in the joint sessions or the help of the joint professionals.  Notably, because of the cooperative nature of collaborative law, all experts are impartial and jointly retained by the parties.  Neither party can retain an individual expert, as parties work together to resolve their problems.

The collaborative process is characterized by multiple meetings, each of which follows an agenda and is designed to address a specific goal or set of goals, working toward the ultimate goal of global dispute resolution.  Information and documents are exchanged voluntarily and with full cooperation, rather than by formal request and perhaps resistance.  The series of meetings, which breaks down the dispute into smaller and more manageable issues, is usually completed more quickly and less expensively than litigation and it is significantly less antagonistic.  The meetings are private, respectful and scheduled at mutually convenient times.  When there is a final agreement, a document is drafted by the attorneys, sometimes in the presence of the parties, and reviewed and edited by all until everyone is satisfied.  The record available to the public will only contain final settlement documents and, in many instances, neither party will need to appear in court.  The collaborative process allows all parties to be focused on settlement with the preservation of the relationship, privacy and dignity as top priorities. 

Know the Law is a bi-weekly column sponsored by The McLane Law Firm
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