What is collaborative resolution? Collaborative Law is an alternate means to resolving disputes without having to go to a trial in court. Simply stated, “collaborate” has been defined as “to work together.” So, collaborative law promotes the concept that the parties (persons involved in the dispute) and their lawyers will work together to resolve the dispute outside the courtroom.
Where can collaborative resolution be used? The principles of collaborative law can be applied to most any dispute, including such things as divorce, disputes involving estates and trusts, business and partnership disputes, construction disputes, employment disputes and contract disputes.
Why should I consider agreeing to collaborative law to resolve my dispute? In short, it can be far less expensive, time-saving and less emotionally disruptive for everyone concerned. Although going to court (litigation) can many times not be avoided, the cost of litigation, the time required for filing and supporting all of the necessary pleadings and motions, issues involving discovery and the congestion of most court’s calendars, often result in a very lengthy and expensive court process to which the use of collaborative law may provide a reasonable alternative. Additionally, where the issues involve family related matters such as are involved in divorce or probate and trust litigation, collaborative law affords a mechanism for maintaining reasonable relationships between the family members involved.
How does collaborative law work? The basic premise is that the parties and the lawyers start out with the firm commitment to do their very best to resolve the dispute between themselves and not by using the court. Everyone agrees to fully and honestly disclose all of the documents and facts that they believe support their side of the dispute. Each party can hire experts to help them present their evidence, and counselors can also be retained to help the parties work through emotional issues involving such things as child custody or who receives a family heirloom. The parties and their lawyers meet together to resolve problems, respond to questions and work together to attempt to settle the dispute without court involvement. All of this is spelled out in advance in a written agreement signed by the parties and their lawyers.
What are the downsides of collaborative law? Since a successful use of collaborative law principles is fully dependent upon every party being committed to getting the dispute settled, if a party is not genuinely interested in settlement and really all along intend to have their “day in court,” the process is doomed to fail from the outset. This can unfortunately result in what turns out to be unnecessary expenses, loss of time and a delay in getting the matter before a court for resolution.
Most Collaborative Law Agreements provide that if the process fails, all of the attorneys involved will cease their representation of the parties and none will represent any of the parties in any law suit involving the dispute. Additionally, it is typical for such agreements to provide that the parties’ experts are also precluded from being involved in the court dispute. Therefore, should the process ultimately fail, you will be required to retain the services of another lawyer and, potentially, other experts. Additionally, based upon the terms of the agreement, it might be possible that you could not later use in court any of the information provided to you by the other party(s) during the collaborative law process. On a positive note, the potential of such additional expenses can also be a carrot to lead the parties to settlement.
How does collaborative law differ from other forms of alternative dispute resolution? There are other processes known as mediation and arbitration designed to avoid court action. Although, at the appropriate time each of these processes has their own merits, briefly stated, no other mechanism provides for the openness, amicable atmosphere and commitment to resolve the dispute as does collaborative resolution.
Robert W. York
Indiana Attorney # 1435-49
ROBERT W. YORK & ASSOCIATES
7212 N. Shadeland Ave., Suite 150
Indianapolis, IN 46250
Tel: (317) 842-8000
Fax: (317) 577-7321