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FREQUENTLY ASKED QUESTIONS

  • What Are the Benefits of Collaborative Family Law?


  • What is the Goal of Collaborative Law?


  • For Whom is Collaborative Law a Good Idea?


  • Can a Lawyer Represent a Client Zealously If It Is Agreed in Advance Not To Go To Court?


  • Can a party quit during the process?


  • How Does a Lawyer’s Assessment of the Likely Outcome of the Client’s Case if it Litigated, Affect the Way the Lawyer Approaches a Collaborative Law case?


  • Is Everybody in the Lawyer’s Firm Precluded From Participating in the Litigation in the Event the Collaborative Law Process is Unsuccessful?


  • Can In-House Corporate Counsel Take Part as a Collaborative Lawyer?


  • Why Must a Lawyer Resign If The Other Side Decides to Go to Court?


  • How is a Lawyer’s Relationship With a Client Different in the Collaborative Law Process, and How Do Lawyers Prepare Clients For It?


  • Can one lawyer practice collaborative law if the other side has not signed a participation agreement?


  • How Is Collaborative Law Different From Mediation?


  • What Is The End Result of a Collaborative Law Case? How Are Interests, Rights, and Agreements Secured?


  • How Does the Practice of Collaborative Law Affect Attorney Fees?


  • What Can Collaborative Lawyers Do If Negotiations Reach Impasse?


  • Is the Collaborative Lawyer Required to Divulge Even Non-discoverable Information During the Collaborative Law Process?


  • If Information Is Requested in Good Faith but Is Otherwise Protected from Disclosure by a Privilege, must a Collaborative Lawyer Disclose It?


  • Is a Collaborative Lawyer Required to Disclose Information That the Other Side Has Not Requested, but Which May Be Important to the Case?


  • What Happens If a Party Doesn’t Fulfill His or Her Disclosure Obligation under the Participation Agreement?


  • What If, Sometime after Entering into a Settlement as a Result of a Collaborative Law Process, a Collaborative Lawyer Discovers That the Other Party Failed to Disclose Information That Should Have Been Disclosed?


  • What if the Settlement is Not Achieved Cooperatively?


  • For What Type of Client Does Collaborative Law Work?








  • Q: What Are the Benefits of Collaborative Family Law?

    A: Collaborative family law focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits. It creates a cooperative environment where communication remains open, which provides a setting where you can work with your spouse to meet your children's needs -- regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.

    It establishes a team instead of adversaries. Your lawyer supports you; your spouse's lawyer supports your spouse. But you all work together and, in doing so, retain control of the process.

    In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

    You and your spouse shape the agreements together -- which means you both are more likely to keep them. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result.

    You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

    Your issues stay within the collaborative law setting. That gives you more privacy and greater confidentiality -- and less stress during an already stressful time.

    Collaborative family law focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits.

    It creates a cooperative environment where communication remains open, which provides a setting where you can work with your spouse to meet your children's needs -- regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.

    It establishes a team instead of adversaries. Your lawyer supports you; your spouse's lawyer supports your spouse. But you all work together and, in doing so, retain control of the process.

    In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

    You and your spouse shape the agreements together -- which means you both are more likely to keep them. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result.

    You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

    Your issues stay within the collaborative law setting. That gives you more privacy and greater confidentiality -- and less stress during an already stressful time.


    Q: What is the Goal of Collaborative Law?

    A: The goal or purpose of collaborative law is to offer lawyers and their clients a structured, non-adversarial alternative to an increasingly adversarial system of dispute resolution. It guarantees consumers of legal services high quality, skilled legal counsel to assist in the evaluation and resolution of a problem, without litigation.


    Q: For Whom is Collaborative Law a Good Idea?

    A: Not every lawyer will want or be able to practice collaborative law. Not every case will be appropriate for collaborative law, nor will every client be interested in avoiding the adversarial contest. For many lawyers, however, the adversarial experience has led to a belief that the commitment of time, energy, and money to an adversarial case often does not achieve an outcome which provides a cost effective or even a good solution to their clients problems. Similarly, many consumers of legal services are looking for experienced legal counsel and skilled advocacy but do not want the stress and excuse of litigation. For these lawyers and these clients, collaborative law is an excellent option.


    Q: Can a Lawyer Represent a Client Zealously If It Is Agreed in Advance Not To Go To Court?

    A: By entering into a Collaborative Law Participation Agreement lawyers and their clients have thoughtfully agreed to limit the lawyers role within the contractual relationship to that of providing representation for settlement purposes only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the collaborative lawyer does not give up the role of advocate for his or her client. None of a lawyer’s duties or obligations to a client are affected by this limitation.


    Q: Can a party quit during the process?

    A: Nothing in the participation agreement precludes a party from terminating the collaborative law process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel. Of course, the other side also will be trading their collaborative lawyer for a litigator.


    Q: How Does a Lawyer’s Assessment of the Likely Outcome of the Client’s Case if it Litigated, Affect the Way the Lawyer Approaches a Collaborative Law case?

    A: Although the participation agreement prohibits threatening litigation, the lawyer’s advice strengths and weaknesses of the case showed and included an assessment of the likely outcome if the case were to be litigated. Application of the law and client’s legal rights is a fair and appropriate outcome in a collaborative process this assessment, would also include consideration of all of the costs and risks of litigation.


    Q: Is Everybody in the Lawyer’s Firm Precluded From Participating in the Litigation in the Event the Collaborative Law Process is Unsuccessful?

    A: Yes. Only in this way can parties be assured that there is no benefit to be gained by counsel in failing to succeed with settlement.


    Q: Can In-House Corporate Counsel Take Part as a Collaborative Lawyer?

    A: Yes. In-house corporate counsel is in the unique position of being both an attorney and a client simultaneously. If the collaborative law effort fails, however, corporate counsel must retain outside lawyers to handle the litigation.


    Q: Why Must a Lawyer Resign If The Other Side Decides to Go to Court?

    A: The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed. Thus, all participants are equally and fully invested in finding the solutions to all problems. More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to, ceases to be a viable tactic.


    Q: How is a Lawyer’s Relationship With a Client Different in the Collaborative Law Process, and How Do Lawyers Prepare Clients For It?

    A: First, the lawyer never ceases to be the client’s advocate and the client is so assured. By entering into the participation agreement the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). Now the objective is to discern and attempt to satisfy the interests of both (all) parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires, and to listen carefully to those expressed by others. Collaborative lawyers remind and reassure their clients that by treating the other side’s interests with respect, they are serving their client’s goals and interests. Collaborative lawyers are trained in collaborative communication skills and will assist the parties in this endeavor.


    Q: Can one lawyer practice collaborative law if the other side has not signed a participation agreement?

    A: It is assumed that in most cases the parties will proceed on a collaborative law basis only when all lawyers and clients have signed the participation agreement. Circumstances could arise, however, when one party and their lawyer decide to contract with each other with the premise that the lawyer is hired only for settlement purposes, even when the other side has not signed a participation agreement. For example, some lawyers might decide they do not wish to litigate and a client might still want their services, or some clients might be certain enough that litigation is not in their interests that they would choose to establish that limit up front. It may also be a useful strategy for one party to approach another through their collaborative lawyer with a participation agreement already signed. This would demonstrate a clear intent to seek resolution through non-adversarial means and thus encourage a more open and less defensive response.


    Q: How Is Collaborative Law Different From Mediation?

    A: Mediation involves the use of a third party neutral in facilitating the negotiation and settlement of a dispute between the parties. Parties can always walk out of mediation and proceed to litigate. In collaborative law cases, lawyers and their clients will talk and negotiate with or without the assistance of a third party neutral, unless they find such an intervention would be useful. In mediation, the neutral cannot be an advocate for one party over another, or propose a possible outcome if the case is litigated. Mediators are committed to continuing the dialogue until a satisfactory solution is reached since litigation is not an option.


    Q: What Is The End Result of a Collaborative Law Case? How Are Interests, Rights, and Agreements Secured?

    A: With the advice and assistance of counsel, parties can conclude their discussions however they wish, and secure any agreements by whatever methods are appropriate. They might walk away satisfied, with no further action needed. They might end with some extra-judicial agreement or with some agreed court order or releases. There are no formal limitations to what parties can agree to do to solve their problems.


    Q: How Does the Practice of Collaborative Law Affect Attorney Fees?

    A: Representation and fee agreements between attorney and client are not directly affected by the participation agreement.


    Q: What Can Collaborative Lawyers Do If Negotiations Reach Impasse?

    A: The Collaborative Law Institute of Georgia is based on an multi-disciplinary network model. Collaborative lawyers can agree to employ experts, such as therapist and financial experts, to advise both sides as to disputed facts or law. The participation of multi-disciplinary network professionals can help move the case forward toward solutions. Finally, collaborative lawyers and parties can hire a mediator at any time.


    Q: Is the Collaborative Lawyer Required to Divulge Even Non-discoverable Information During the Collaborative Law Process?

    A: Unless otherwise agreed, by signing the participation agreement, the collaborative lawyers and clients agree to provide good faith responses to any good faith questions or requests for information by the other party. In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues. Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a collaborative lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context.


    Q: If Information Is Requested in Good Faith but Is Otherwise Protected from Disclosure by a Privilege, must a Collaborative Lawyer Disclose It?

    A: The informal good faith question/good faith response approach is not intended to require any party to disclose privileged information. Certainly a party is free to do so. No such disclosure of privileged information indeed, no disclosure of any kind made during the collaborative process could ever be revealed to any court for any purpose except to enforce an agreement reached during the collaborative process.


    Q: Is a Collaborative Lawyer Required to Disclose Information That the Other Side Has Not Requested, but Which May Be Important to the Case?

    A: Yes. The informal good faith question/good faith response approach is intended to require any party to disclose information that may be relevant to the settlement of the case. The parties and attorney are committed to preventing abuses that would naturally impede the collaborative law process, including one party inundating the other with mountains of information that will be of no use to the other party. In the collaborative law process, the goal is to provide the parties with the information needed to resolve their dispute.


    Q: What Happens If a Party Doesn’t Fulfill its Disclosure Obligation under the Participation Agreement?

    A: Participation in the collaborative law process is based on the requirement that the parties to the participation agreement (both attorneys and clients) have acted in good faith and have provided accurate information as required under the good faith question/good faith response approach. Thus, a party’s refusal to fulfill its disclosure obligation under the participation agreement will make it impossible for the parties to reach a fair resolution. When an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the collaborative lawyer to withdraw.


    Q: What If, Sometime after Entering into a Settlement as a Result of a Collaborative Law Process, a Collaborative Lawyer Discovers That the Other Party Failed to Disclose Information That Should Have Been Disclosed?

    A: In this respect, a settlement agreement reached via a collaborative law process is no different from any other negotiated settlement agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. Any settlement agreement reached during the collaborative law process, the attorneys and the parties should recite the material facts upon which the settlement is based.


    Q: What if the Settlement is Not Achieved Cooperatively?

    A: In the event the parties are able to arrive at a settlement through the Collaborative Law Process, the lawyers withdraw from the case and the parties are free to retain trial attorneys to pursue their matter in court. The result is that the parties will have the best representation for each phase of the proceeding, and possibly save time spent in a subsequent, costlier trial.


    Q: For What Type of Client Does Collaborative Law Work?

    A: People who have at least "a little good will" toward wanting to work out a settlement are candidates for a collaborative law approach. Without that small bit of openness in the process, collaborative law will probably not work. Collaborative law requires clients who want to make their own decisions regarding their lives, and who are capable of seeing more than one way to resolve an issue.


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