The Basics of Collaborative Law

The Basics of Collaborative Law

desk with a book and glasses on it. The book has the words family law on the cover.

Collaborative law is a way to resolve disputes in a non-adversarial manner. Collaborative law processes have been in place for about 30 years and to date, 15 or so states have passed the Uniform Collaborative Law Act of 2009.

It primarily focuses on family law and divorce but it can be applied toward other disputes such as insurance claims, business mergers, employment and acquisition of properties.

To begin the steps for a collaborative resolution, a participation agreement is signed by all parties, including the representing attorney. The initial meetings and the Collaborative Participation Agreement will set the stage for everything that follows.

If at some point both parties can’t resolve the issues through collaborative law, the attorney will step down and a litigation process will begin.

While the courts can’t order you to make an appearance, they can retain the authority to issue emergency orders to protect welfare, health, safety and financial interests.

It is required that your attorney make a full disclosure of the pros and cons of the collaborative law process so that you can make an informed decision.

All parties must agree to disclose all relevant information and financial documents with the promise to exercise good faith during negotiations.

In accordance with the Collaborative Participation Agreement, disclosed information is privileged and can’t be used in subsequent litigation.

Exceptions are made to prevent abuse or neglect of a child or adult, bodily harm and if there is a question of malpractice or professional misconduct.

All parties are allowed to bring in professional experts, such as financial or health care, to aid in the dispute resolution process.

Because collaborative law does not involve the courts, it can be less emotionally draining and more relationship preserving. It leaves the final decision to the parties as opposed to a third person’s binding ruling.

The biggest drawback is that the representing attorney must step down the moment they may be needed the most – during litigation. Plus, now there is the expense of the collaborative law fees on top of court costs.

However, collaborative law maintains that litigation rarely results at the end of a collaborative process when –

• Both parties have common ground rules for negotiating.
• The attorney themselves are self-confident, experienced persons able to address problem areas as an individual’s resistance to disclosing needed information or delaying the process either consciously or unconsciously.
• The attorney must rely on facts and not opinions.
• Common courtesy, mutual respect and constructive negotiations are crucial to success.

Because collaborative law is being advocated courts have created state-wide and local rules to govern its process. Consult an experienced attorney to better understand your states collaborative practices.

PJ. Hartman is a native resident of New Mexico and a New Mexico Supreme Court-Certified Family Law Specialist* with 15 years of experience in family law. Call her today at 505-247-3335 for a consultation.