Collaborative Law as an Alternative to Litigation

 

Collaborative law is a method of dispute resolution in which parties hire specially trained attorneys who represent them throughout the process.  All parties to the dispute sign an agreement that they will negotiate a resolution and will not resort to litigation.  If the process is not effective in allowing the parties to reach agreement, the parties agree that their collaborative attorneys will not represent them in any future litigation of that matter.

Many disputes involve parties with generally successful working relationships, relationships both parties would like to preserve in spite of the immediate issues which may give rise to litigation.

Some of the advantages of the collaborative process over litigation are as follows:

• Confidentiality

Parties to the collaborative process sign a confidentiality agreement which assures that the information revealed will be kept within the process.  This can be an advantage over the more public nature of the court process.

• Full disclosure means reduced discovery costs

An important aspect of the collaborative process is full disclosure of relevant information and transparency within the process.  All parties agree, in writing, to disclose to one another all relevant information they have regarding the issues in dispute.  This eliminates wasted effort and expense in preparing and answering too-broad discovery requests and in taking depositions.  The relevant parties are available to discuss issues at scheduled meetings of parties and counsel.

• Possible use of neutral experts as opposed to “dueling experts”

All litigators are familiar with expert-shopping and the resulting dueling expert opinions.  In the collaborative process, parties agree to select a neutral expert to evaluate evidence as is necessary or desirable.  In the event a party disagrees with the expert, it is free to obtain another opinion at its own cost, and present that information to all participants.

• Control over the outcome

                       
One of the most frustrating things about litigation is the uncertainty of the outcome.  There is no guarantee that the result of a trial is unacceptable, leaving a disappointed party with the burden of appeal.  In the collaborative process, negotiations continue until the parties reach a resolution.  No party can be forced to agree to an outcome that it cannot accept.

For all of these reasons, parties wishing to maintain important business relationships may choose to participate in the collaborative process when difficult issues arise.  Many believe that the process itself can lead to better communication of difficulties before they rise to the level which may otherwise result to litigation, thus improving the overall atmosphere in which business is conducted.