Collaborative law is defined as ‘a method of practising law in which attorneys assist their clients in resolving conflict and making agreements using cooperative strategies rather than litigation’. Collaborative law is founded on both parties and their respective legal representatives entering into a written agreement in which all the parties to the process commit themselves to respectful and good faith negotiations. The hallmarks of the collaborative process are said to be: full, voluntary and early disclosures of relevant information; acceptance of the parties of the highest level of fiduciary duties towards each other; voluntary acceptance that the aim of the process is to settle the issues and commit to participate fully in the process; transparency of the process; joint retention of neutral expectations; commitment to meeting the legitimate goals of both parties if at all possible; avoidance of litigation or the threat of litigation; disqualification of all legal representatives and experts from participation in any future legal proceedings between the parties outside the collaborative process; and four-way settlement meetings as the principal means by which negotiations and communications can take place.
At the start of the collaborative law process, the parties, together with their legal representatives, bind themselves to engage in interest-based rather than positional bargaining, in order to jointly deal with issues, which emanate from their disputes. The deliberate avoidance of positional bargaining allows parties to be more open minded when negotiating, and thus allows them to consider each other’s interests and those of their children (if any). Such an approach allows parties to adequately understand each other’s needs and not to be unreasonable when negotiating for individual interests. Depending on the financial wellbeing of the parties, over and above their respective legal representatives, they can also hire one or more experts depending on their needs. For instance, they can hire a child development specialist, accountant, or a real estate appraiser to advise them fully with regard to their children, finances or properties. In order to ensure a certain level of fairness, experts who are brought in to assist parties to reach an amicable resolution – and thus be in a position to settle – need to be impartial and neutral. However, should they fail to assist the parties as expected and the matter ends up in court, then they would be disqualified from testifying in court.
Finding ways to achieve a fair and equitable resolution without the need for litigation, is always our priority. Accordingly, should you and your spouse be open to making use of a collaborative law model, our experienced and trained staff will be able to represent you in such proceedings, on the understanding that, if the process fails and litigation ensues, we will not be in a position to proceed as your representative.
For direct answers to your specific personal questions, please contact us directly.