Whether it is a small closely held business--
or a company traded on the stock exchange, the collaborative process can keep their disputes and negotiations private--
unless and until all of the parties want to release the news.
Something that you must understand about Collaborative Law:
One requirement in the participation agreement makes Collaborative Law different from any other form of dispute resolution. This requirement is the withdrawal provision which states that if the parties fail to settle their disputes in the collaborative process, the collaborative lawyers must withdraw from the case, and the parties must hire litigation lawyers to represent them when they go to trial.
The withdrawal provision is used to guarantee that the parties and their lawyers make every effort possible to settle their cases and avoid going to the courthouse. In Collaborative Law if the lawyers throw up their hands and say, “Let the judge decide,” the lawyers have just lost their jobs because they are not allowed to continue the case at the courthouse. This means that the parties must hire different lawyers to represent them in litigation. The requirement that the lawyers withdraw if the case does not settle creates an extra incentive for the parties and their lawyers to work hard to discover options that allow them to reach agreements.
Steps in the Collaborative Process:
Determine Interests and Goals (listen)
Brainstorm (develop options)
Settle (get on with your life)
The collaborative process involves face -to-face meetings with the other parties and their lawyers to discus each party’s the interests and concerns. These meetings allow the parties to directly state their concerns to the other parties and to directly hear the other parties‘ concerns rather than receiving this information third hand from their attorneys who heard it from the other parties’ attorneys. Eliminating filtered communication allows the parties to quickly clear up misunderstandings and false assumptions. Face-to-face negotiations also allow the parties to read each others’ faces and body language, so much more information than the spoken word is conveyed.
Parties Don’t Go to the Courthouse:
Parties who stay out of court and keep control over their cases are more likely to be satisfied with the outcome than the parties who rely on the judge or jury to decide the terms that settle their disputes. The only court appearances by parties in collaborative cases are to tell the judge that they have settled.
(Plain Old Common Sense)
Litigation and Transparency:
There is no requirement for transparency in the litigation process. When parties choose to go to court, they must engage in formal discovery to attempt to get evidence to prove their positions. Formal discovery is the most expensive part of litigation. By agreeing to voluntarily disclose necessary information, the parties save the time and expense of formal discovery. This is one of the primary reasons that Collaborative Law is able to get many cases settled faster and for much less money than litigation.
Collaborative Law is often referred to as the collaborative process or collaborative practice. The process may appear in several forms but true collaborative cases always require the parties and their lawyers to sign a contract called the participation agreement or the “PA.” This agreement relies on interest based negotiation and sets up guidelines that will lead the parties through the steps of the collaborative process. This process can be used by individuals, businesses and institutions.
One requirement contained in the PA is called “transparency” which simply means that the parties and their lawyers agree to be truthful and furnish each other any information that is necessary to resolve the dispute.