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Collaborative Law is a form of dispute resolution that avoids court proceedings entirely, except where a court's approval of the final agreement is required, and is conducted through a series of meetings in which the parties, each advised by their own lawyer, work towards reaching a settlement.
The collaborative lawyer commits to their client to seek a resolution through a collaborative process, working alongside the other party's lawyer, negotiating, engaging in mediation or consulting other neutral professionals such as lawyers, psychologists, educators, social workers, coaches or accountants.
Under the terms agreed between clients and their lawyers, all discussions are confidential. Should it prove impossible to reach an agreement and court proceedings become unavoidable, the collaborative lawyer involved up to that point would withdraw from the case, and the client would be represented by a different lawyer.
In interest-based collaborative negotiation, the shared benefit of all parties is considered more important, and more sustainable over time, than the exclusive pursuit of one's own interests.
The aim is to encourage the parties to look beyond the obvious, straightforward options of simply dividing what is at stake, and to explore more creative solutions.
What are the defining features of Collaborative Law?
Collaborative Law is founded on the principle of collaboration rather than confrontation. This collaborative principle means offering clients the opportunity to move beyond fixed positions, express their underlying interests, and thereby identify their real needs. In this context, interest-based negotiation techniques play a central role in the effective development of the collaborative process.
It shares with mediation and most other interest-based alternative dispute resolution methods the following characteristics:
1.- Confidentiality: all information exchanged remains strictly between the participants involved in the process and may not be used in any subsequent proceedings, whether judicial or otherwise.
2.- Voluntariness: participation by all parties is entirely free and voluntary. No party is obliged to remain in the process, let alone to reach an agreement, if they feel that their legitimate interests and expectations are not being met.
3.- Control over the process: the degree of control will depend on how the parties and professionals involved choose to work together and on the structure they design. However, unlike court proceedings, where the parties are subject to the court's timetable and procedural formalities, the collaborative process can be managed in a swift and flexible manner, tailored to the parties' actual needs.
4.- Flexibility: alternative dispute resolution methods are flexible and adaptable to the parties' needs. That said, they are not entirely unstructured, their conduct is guided by certain principles and a set of basic ground rules that help the process run smoothly, without ever approaching the rigid formality of traditional adversarial proceedings.
5.- Cost-efficiency: the cost of the service will naturally vary depending on a number of factors, such as the complexity of the dispute or the need to involve different professionals. In any event, the overall cost will be substantially lower than that of court litigation, both in terms of direct costs and opportunity costs.
6.- Legality: whilst the parties are at the centre of the process and the rights at stake are generally available for disposal, no agreement may be reached that is contrary to law.
7.- Equity: the parties must be in a position of balance in order to reach more satisfactory agreements that genuinely address their interests and real needs. Any third parties who may participate in the collaborative process must maintain a neutral or impartial stance towards both parties.
8.- Efficiency: by virtue of the very structure of these procedures, they tend in most cases to be resolved more quickly and effectively than court proceedings.
9.- Transparency: because the parties have a greater level of involvement and agency in the process, they feel more secure and are able to address, with greater openness, all the matters that genuinely concern them and that they wish to resolve.
10.- Satisfaction: practical experience consistently demonstrates that in jurisdictions where alternative dispute resolution methods have been adopted and properly implemented, the outcomes achieved are positive.
What are the essential and intrinsic elements of Collaborative Law according to the IACP?
The IACP (International Academy of Collaborative Professionals) identifies the following as essential elements of collaborative practice:
- A commitment to maintaining an honest, respectful approach guided by the principle of good faith.
- A commitment to avoiding litigation or the threat of litigation.
- Active participation by the clients. Meetings involving both clients and their professional team are the appropriate means of exchanging and sharing information.
- Identifying the shared goals and individual interests of both clients, and seeking solutions that meet the needs of each.
- The opportunity to work with other professionals in an interdisciplinary team to enhance the effectiveness and efficiency of the resolution process.
