Frequently Asked Questions - Civil Collaborative Practice
» Read FAQs about Collaborative Practice in family law matters
Civil Collaborative Practice is an exciting and innovative new practice that uses collaborative strategies rather than adversary techniques to resolve disputes. The Collaborative process is currently most often used in family law matters; however, use of the Collaborative process in civil practice is gaining momentum.
What is Civil Collaborative Practice
Collaborative Practice is a term encompassing all of the models which have been developed, including those involving interdisciplinary teams of professionals trained to work together with the clients in resolving disputes respectfully, without going to court. At the heart of all of Collaborative cases is that each client has the support and guidance of his or her own lawyer, as well as access to additional professionals who can provide support in their areas of training. While Collaborative lawyers are always a part of collaboration, in Civil Collaborative Practice communication coaches, financial consultants, mediators and other professionals are retained to provide the clients with the highest quality service possible. The team of Collaborative Professionals uses strategies and techniques geared toward dispute resolution rather than adversarial proceedings.
Another key to Collaborative Practice is the agreement that once retained to work in the Collaborative process, the Collaborative lawyers will not represent the parties in litigation. If either client decides to litigate the issues, all of the members of the professional team must withdraw.
The same alternate dispute resolution principles that have preserved the integrity and dignity of families in conflict can also bring relief to those in disputes in many areas of civil and commercial law.
How does it work?
A typical collaborative case consists of two clients who each select independent Collaborative attorneys, working together as a team with the goal of resolving all of the issues. The parties and their attorneys enter into a formal agreement that under no circumstances will they go to court. Everyone agrees that they will settle the case utilizing the Collaborative process. If a settlement cannot be reached, or if one of the parties chooses to withdraw and seeks court intervention, both clients must hire new attorneys. This is important, as it insures that the collaborative attorneys are truly focusing on settlement rather than being distracted by thoughts of litigation strategies or positioning. The process requires a significant shift in thinking for the attorneys and the parties. New roles are based on the clients controlling the outcome, voluntary and good faith exchange of all relevant information and refraining from making threats of litigation.
What kinds of civil disputes are appropriate for Collaborative Practice?
In theory, any matter that can be litigated is capable of resolution through the Civil Collaborative Practice. Disputes in the areas of Business, Commercial, Construction, Contracts, Corporations, Elders, Estates and Trusts, Environmental, Franchise, Insurance, Intellectual Property, International Disputes, Labor, Mergers and Acquisitions, Partnerships, Personal Injury, Probate, Professional, Malpractice, Real Property Transactions, Securities/Antitrust, Sports and Entertainment, and Torts, are prime examples.
What advantages does Collaborative Practice offer over other process options?
Lower Cost: Collaborative Practice is generally less costly and time-consuming than litigation.
Client Involvement: The client is a vital part of the settlement team (consisting of both parties and both attorneys), hence clients have greater involvement in the decision-making which affects their lives.
Utilization of Interdisciplinary Team Supportive Approach: Each client is supported in a manner that allows the attorneys and all other professional members of the team to work cooperatively with one another in resolving issues that might otherwise infect non-legal aspects of the parties’ lives and relationships with each other.
Less Stress: The process is much less fear- and anxiety-provoking than traditional Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of "going to Court."
Win-Win Climate: Collaborative Practice creates a positive climate. The opportunity exists for participants to work as problem-solving partners in a climate that facilitates "win-win" settlements.
Speed: Collaborative Practice can be much less time-consuming than cases which get bogged down by lengthy discovery, hearings and clogged court calendars.
Creativity: Collaborative Practice encourages creative solutions in resolving issues, including remedies that may not be available in litigation.
Clients in Charge: The non-adversarial nature of Collaborative Practice shifts decision-making into the hands of the clients where it belongs, rather than into the hands of a third party (the Court).
How does the Collaborative Process work in the healthcare industry?
Medical professionals and hospitals strive to deliver the best medical services available to keep their patients healthy and satisfied, and returning; to gain and maintain good will, respect, and a reputation for excellence in their communities; to promote sound business relationships; and to earn profits.
Notwithstanding these goals and objectives, disputes will inevitably still arise in the form of malpractice claims or disputes among healthcare professionals, their hospitals and insurance companies.
Collaborative Practice allows parties in the healthcare profession to resolve these disputes in a less disruptive and more cost-effective manner by engaging in good faith interest-based negotiation and a commitment by the parties not to go to court.
The process is voluntary and confidential. Civil Collaborative Practice therefore protects the reputation of the hospital and healthcare professionals and the welfare of the patient by addressing the interests of the parties involved.
The Collaborative process is well suited to patients and medical practitioners alike. When necessary, Civil Collaborative Practice offers the parties the advantage of a team approach to assist them in the resolution of their conflict. The parties, their lawyers and a team of coaches, financial advisers or other specialists will work together to generate options that best meet the interests of the parties and guide them to a resolution of their dispute. The patients` claim may be resolved, potentially years earlier than in litigation, with the patients retaining a greater proportion of the compensation due to a more cost-effective process. The doctor is able to privately offer an explanation and an apology without fear it will be treated as an admission of fault in Court, thereby preserving the doctor-patient relationship and continuity of patient care.
Collaborative Practice allows urgent, contested medical disputes to be dealt with when time constraints make litigation an impractical alternative.
Insurance Companies are also able to settle legitimate cases earlier than a trial process normally allows, and to contain legal fees and expenses.
For patients, medical professionals, and other participants in the healthcare industry, resolution of disputes through Collaborative Practice gives them a better chance to continue to treat their patients, to work with each other, to protect their reputations, and to return to their shared interest of delivering excellent healthcare services.
How does the Collaborative Process work in employment disputes?
Companies understand that the people they employ are their greatest assets. Sometimes, however, misunderstandings or disagreements occur in the workplace that can lead to legal disputes.
Collaborative Practice offers employers and employees a way to resolve legal conflicts and employee complaints that does not result in hardening of positions, loss of productivity, emotional turmoil and large legal bills. Instead, Collaborative lawyers work closely with their clients and each other to explore options that address the interests and concerns of the parties without apprehension that positions might shift toward litigation.
Collaborative Practice can be used successfully when there are contract issues, allegations arising from discipline or termination, co-worker disputes, workplace harassment or bullying, employee requests for accommodation, and the like. Whether the employment relationship is continuing or not, the Collaborative process helps clients reach practical solutions to workplace disputes.
How does the Collaborative Process work in probate, estates and trusts?
Estate planning attorneys and tax counsel are usually not litigators. One thing their clients all want and plan for is avoidance of conflicts and lawsuits at death. Continuity of businesses and lifestyles, and minimization of taxes are other key planning factors. A major concern is preservation of family relationships. Many clients want to avoid having their estate become involved in court proceedings. The successful marketing of the living trust nationwide has focused on the idea of avoiding probate-which is not necessarily an adversarial process. Estate planning counsel have responded by making living trusts a core planning device – “avoid probate, avoid litigation”. However, the conflicts that previously arose in probate estates now are appearing in probate court as trust litigation.
Estate planning attorneys can offer Collaborative Practice as another tool to mitigate or avoid post-death litigation. They can discuss Collaborative Practice with clients, and produce testamentary documents which require or encourage Collaborative Practice to resolve any disputes, perhaps with a tie-in to "no contest" clauses as added incentives. The possibility of long-standing sibling rivalries being healed, rather than consuming estate assets, is more likely in the Collaborative Process than it is in litigation.
How does the Collaborative Process work in construction industry disputes?
Developers, contractors, sub-contractors, architects, engineers, and owners associated with a construction project can benefit by the application of Collaborative Practice. A serious construction dispute may halt a project for months-even years. Parties need a quick resolution to remain on schedule, avoid penalties and interest, complete the project, and free capital for other endeavors. By placing a clause in the contract that all parties will consult with trained Collaborative lawyers before proceeding to any other form of dispute resolution, parties can opt to settle matters quickly, privately, and confidentially thus preventing their disputes from developing into full-blown litigation.
How does the Collaborative Process work within for religious organizations?
Disputes arising in churches and their related religious organizations are often emotionally and spiritually devastating for members of the congregations. The last place to settle difficulties in faith-based communities is the court room. Collaborative Practice allows private and confidential face-to-face meetings of the parties and their legal representatives where they can share their interests and goals as well as hear the interests and goals of the other parties, which generally results in a better understanding of the problem and begins the journey to discovering options for peaceful resolutions.
Where can professionals find training in the Collaborative Process?
Training opportunities for Collaborative professionals can be found in the For Professionals section of this website.
With thanks to Pauline Tesler and the International Academy of Collaborative Professionals for excerpts from her FAQs