The Collaborative Process
The process is voluntary. This means collaboration is not an option unless all parties to the dispute agree that collaboration is the method they will use to resolve their controversy. After the process is agreed upon, each party must select an attorney. Since collaboration relies on techniques foreign to litigation, the parties’ attorneys must have training in the collaborative dispute resolution process.
Once all parties and their counsel have met and signed the Participation Agreement, the collaborative attorneys prepare a schedule for “face to face” meetings. Each meeting follows an agenda and is attended by the parties and their attorneys. Unless all parties agree otherwise, only topics on the agenda are discussed.
At some point, a law suit may be filed. This may occur prior to the signing of the Participation Agreement or shortly thereafter; however, there are no surprise subpoenas, no depositions, and no court hearings. Everything is handled in the face to face meetings.
Next, the collaborative agenda focuses on defining the issues and each party’s goals and expectations. Each party has the opportunity to express that party’s complaints and explain any concerns. In addition, participants have the opportunity to hear the other parties’ complaints, concerns and explanations first hand — not through the other parties’ attorneys or written pleadings.
After all parties have stated their goals and expectations, determinations are made as to the documents and other information necessary to craft a solution. The Participation Agreement provides that the parties will supply all necessary information which is in their possession and/or control, as well as refrain from making unnecessary and burdensome discovery requests from the other parties. Discovery is informal, and the “face to face” meetings greatly speed and facilitate the discovery process.
During discovery, the parties may conclude that they need an expert opinion regarding a fact or issue. The parties can jointly agree on one expert who will become part of the collaborative process, or the parties may elect to engage a mediator or arbitrator for the resolution of that particular question.
Having clearly defined goals and issues and gathered all of the necessary information, the collaborative attorneys and the parties are now ready to work together honestly and in good faith to develop and explore options. A list of options is compiled, and the benefits and detriments of each option are discussed. Now it is up to the parties to come to a respectful and informed resolution of their dispute.
If at any time during the process a party decides not to continue, the collaborative attorneys must withdraw, and the parties continue their case in court with new counsel.