Moriarty & Dee, Attorneys in Buffalo, New York specializing in matrimonial and employment law.

Collaborative Divorce Looks to Avoid Litigation

In a handful of jurisdictions around the United States, groups of lawyers are banding together and adopting an unusual "just say no" attitude toward litigation.

The "collaborative law" movement - which first developed in Minneapolis and has now spread to San Francisco, Dallas and Cincinnati - involves a commitment by lawyers on both sides of a case to resolve the dispute by negotiation, and to withdraw from the case if they fail.

The process of collaborative law is straightforward. Each party is represented by counsel. Both parties and their attorneys agree, contractually or through a stipulation filed in court, to attempt to settle the matter without litigation or even the threat of litigation. They promise to take a reasoned stand on every issue, to keep discovery informal and cooperative, and to negotiate in good faith.

The key to the agreement is this: if either party seeks intervention through the courts both attorneys must withdraw from representation. (Exceptions are made for certain standstill agreements and emergency motions agreed to by the attorneys.)

In addition the parties' counsel agree that (a) all documents prepared in connection with the collaborative process, such as correspondence and settlement proposals, are inadmissible in any future proceeding, and (b) all experts and the work product are off-limits for use in the subsequent proceedings, unless both parties agree otherwise.

If settlement efforts fail, the collaborative attorneys may assist in getting their successor counsel up to speed, but neither the original attorneys nor any attorneys in their firms are permitted to receive further compensation for the case.

Advantages of Collaborative Law

For clients, the advantages of the collaborative approach are substantial.

First and most importantly, collaborative law creates an atmosphere of cooperation rather than warfare, making it easier for parties to retain amicable relationships after the dispute is resolved.

Without the risks of a possibly one-sided result in court, parties are more likely to stay focused on negotiation, and therefore tend to become less adversarial.

Not surprisingly, collaborative law has taken root most readily in the area of family law, where disputants generally have greatest incentive to remain on speaking terms.

However, collaborative lawyers believe that their approach could expand into other kinds of conflicts where maintaining relationships is an important objective, such as employment law, disputes between business partners, or differences between companies that need to do business with each other in the future.

Second, collaborative law creates stronger incentives for settlement by more effectively aligning (a) the interests of the attorney and client and (b) the interests of the lawyers in the case.

For the attorney, failing to settle means losing the client's business on this case, and for the clients on both sides of the controversy it means the additional expense associated with selecting and educating new counsel.

As a result, collaborative law generally leads to settlements at a lower cost than ordinary representation. One family lawyer estimates that handling a divorce using a collaborative law stipulation (i.e., both sides are bound) costs about one-third the price of traditional divorce representation.

Disadvantages of Collaborative Law

Collaborative law is not without its drawbacks. Perhaps the most serious problem for the clients is the additional cost if collaborative negotiations break down and the original attorneys must withdraw.

Collaborative law can also be abused: For example, parties with greater financial resources could feign an interest in the collaborative process in order to take advantage of its cooperative discovery practices, and then, because they can better afford to change counsel, resist settlement.

Bob Moriarty is a collaborative law practitioner for those clients wishing to participate in the collaborative law process. For further information, please call (716) 881-6400 call to schedule an appointment.

Thank you for visiting our Full Resource Website.

Back to Top