The Collaborative Model
What some parties decide to do, on parting ways,
is to each hire a guide to assist in doing whatever possible to avoid the treacherous
rapids. While the guides are primarily
concerned about the welfare of their own clients, they nevertheless will make suggestions
designed to get both vessels safely to the portage trailhead.
However, if either client decides to take a run at the
rapids, the guides will hop out onto shore, leaving the parties to hire other guides or
attempt the cascade unguided.
This is the essence of Collaborative Law.
Commitment to a principled, negotiated
settlement, following established protocols, without the threat or use of power.
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The
Essence of Collaborative Law
Collaborative Law is a revolutionary concept
creeping across North America, typified by a commitment to a principled, negotiated
settlement without the threat or use of power. Taking
as many forms as there are collaborative organizations, common attributes include the
following:
-Commitment: -Both parties and their counsel agree in writing to engage in the process.
-Principled settlement: -Borrowing heavily from interest-based mediation theory,
those involved agree to negotiate on a principled basis with the goal of reaching a fair
and workable resolution, as opposed to seeking to win at all costs.
-Negotiated settlement: -The process consists almost entirely of four-way settlement
meetings.
-Following established protocols: -Part of what makes Collaborative Law effective is that it
removes the layer of mistrust that often permeates a litigation file.
Because counsel ascribe to a common set of protocols, there is comfort in knowing
opposite counsel is “on the same page” in
terms of such principles as putting the interests of children first, avoiding destructive
comments and behavior in one’s client, and addressing the interests of the party
opposite.
-Without threat or use of power:-In traditional litigation, there is often then tendency of
one or both parties to simply proceed to court to “let the judge decide”.
Voluntarily removing the threat of using the ultimate hammer (“going to court”)
radically affects the power imbalances, which typify traditional litigation.
Other
common characteristics of Collaborative Law include the following:
-Commitment
to withdrawal: -A fundamental and sometimes controversial aspect is the contractual
commitment of counsel to withdraw from the record if either party decides to proceed to
court. The longer the parties are engaged in
the process, the more they have invested, and the greater the incentive to stick with it
and make it work.
-Education and empowerment:-In this model, the client is educated and empowered to be a
pro-active participant in all phases of the process.
In the words of Chip Rose (a prominent Collaborative Law advocate and trainer based
in Santa Cruz, California):
“This
contrasts starkly with the typical relegation of the client to the caboose of the
litigation express where the byzantine procedures of the legal process play such a
dominant role in the path to trial or settlement that the client frequently is seen as
getting in the way of the strategies of the attorney who is charged with responsibility
for aggressively pursuing the interests of the same client.”
-Qualifications of counsel: -All Collaborative Law associations establish qualifications
for participants. Those of the Association
of Collaborative Family Lawyers (Calgary) (“ACFL (C)”) are attached as Schedule A.
In August 2000 these were pronounced by Chip Rose to be the highest standards he
had yet encountered.
-Jointly retained experts: -Any expert brought into the process, such as a psychologist
or accountant, is jointly retained by the parties.
None of the work product of these experts can be used in subsequent litigation, nor
are the experts compellable witnesses.
Continued....