FREQUENTLY ASKED QUESTIONS
What is the goal of collaborative law?
The goal or purpose of collaborative law is to offer attorneys and their
clients a structured, non-adversarial alternative to an 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.
For whom is collaborative law a good idea?
Not every attorney will want or be able to practice collaborative law.
Not every client will be willing to give up the adversarial contest. For
many attorneys, however, their trial court experience has led to a belief
that the commitment of their skill and time to a litigated case often
does not achieve an outcome which is cost effective or even a good solution
for their clients’ problems. Similarly, many clients are looking
for experienced legal counsel, knowledgeable guidance and skilled advocacy,
but do not want litigation. For these attorneys and for these clients,
Collaborative Law is an excellent option.
Can an attorney represent a client zealously if it
is agreed in advance not to go to court?
By entering into a collaborative law participation agreement attorneys
and their clients have made the considered choice to limit the attorney’s
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
attorney does not give up the role of advocate for his or her client.
The collaborative law attorney is representing his or her client zealously,
not only to achieve a short term goal, but to realize the best result
in the long run.
Can a party terminate the process?
Nothing in the participation agreement precludes a party from terminating
the collaborative law process and deciding to litigate. However, the clients
will have been advised at the outset that doing so will require them to
hire other counsel. The other party also will be trading his or her collaborative
attorney for a litigator.
How does an attorney’s assessment of the likely
outcome of the client’s case were it to be litigated affect the way
the attorney approaches a collaborative law case?
While the participation agreement prohibits threatening litigation, the
attorney’s advice to his or her client as to the strengths and merits
of various claims will always include an assessment of the likely outcome
if the case had to be litigated. Consideration of the law and one’s
legal rights is always appropriate in analyzing what a fair outcome in
a collaborative process might be. Along with this assessment will be consideration
of all of the costs and risks of litigation.
What are the Association of Collaborative Lawyers
of Rockland-Westchester requirements for participating lawyers?
1. Practicing primarily matrimonial law at least 5 years.
2. They must complete a two-day Collaborative Law Center training program
and such additional training as the Association requires.
3. They must be members in good standing of the New York State Bar.
4. They must commit themselves to faithfully observing all of the elements
of the collaborative law participation agreement.
Is everybody in the attorney’s firm precluded
from participating in litigation in the event the collaborative law process
is unsuccessful?
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.
Why must an attorney resign if the other party decides
to go to court?
The requirement that all attorneys be disqualified in the event of a breakdown
guarantees that all participating counsel will be totally and exclusively
motivated to have the process succeed. This way, all participants are
equally and fully invested in finding the solutions to all problems. In
addition, it is believed that the way people participate in negotiation,
and especially the way attorneys participate, is affected by the certainty
that that attorney will never litigate the case. Openness, mutual trust,
and cooperation replace guardedness, secrecy, and threats as the techniques
most likely to achieve ultimate success.
How is an attorney’s relationship with a client
different in the collaborative law process, and how do attorneys prepare
clients for participating collaboratively?
First, the attorney 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 clearly about their own
needs and desires, and to listen carefully to those expressed by others.
Collaborative law attorneys remind and reassure their clients that by
treating the other participant’s interests with respect, they are
serving their client’s goals and interests. Collaborative attorneys
are trained in communication skills and will assist the parties in this
endeavor.
Can one attorney practice collaborative law if the
other participant has not signed a participation agreement?
We will proceed on a collaborative law basis only when all attorneys and
clients have signed the participation agreement. Clients and their attorneys
may decide that they will use collaborative principles and use their best
efforts to settle the case, however, the members of the Association of
Collaborative Lawers of Rockland-Westchester will term this non-adversarial
process “working cooperatively”. Unless the participation agreement
is signed and there is a contractual obligation on the attorneys’
part not to proceed with litigation for the clients, we are not truly
working for our clients “collaboratively”.
How is collaborative law different from mediation?
Mediation involves the use of a single neutral person (who may be an attorney,
a mental health professional, or someone who has an interest in mediating)
to facilitate the negotiation and settlement of a dispute between the
parties. The mediator's goal is for the parties to reach agreement and,
to that end, the parties usually are responsible for negotiate negotiating
for themselves. The mediator cannot give legal advice to either of the
parties; the parties may or may not be advised to seek independent legal
counsel during their mediation. In New York, mediators are not required
to be licensed.
How do you deal with courts’ case management
deadlines?
It is anticipated that most collaborative law cases will be resolved prior
to and without any court filings. However, for cases that have already
been filed at the time the participation agreement is signed, stay motions
have been developed for use pending completion of the collaborative law
process.
How do you deal with Statutes of Limitation?
In collaborative law cases counsel and parties will cooperate with each
other fully to prevent the necessity of any court filings while the collaborative
case proceeds. This may involve agreements to toll the Statute of Limitations
when possible. The participation agreement provides for some limited court
filings, as agreed upon and as necessary to protect the parties’
interests, while the collaborative law case proceeds.
How does the practice of collaborative law affect
attorney fees?
Representation and fee agreements between attorney and client are not
directly affected by the participation agreement.
What can collaborative attorneys do if negotiations
reach an impasse?
Attorneys participating in the Association of Collaborative Lawers of
Rockland-Westchester have agreed to act as mentors for each other to assist
in reviewing problem cases or situations. Additionally, collaborative
attorneys and their clients can agree to employ experts to advise both
participants as to disputed facts or law and hire a mediator or arbitrator
at any time.
What happens if a participant doesn’t fulfill
his/her disclosure obligation under the participation agreement?
Participation in the collaborative law process is based on the assumption
that the parties to the participation agreement (both attorneys and clients)
have acted in good faith and have provided accurate information as required.
Thus, while not automatically ending the collaborative law process, a
party’s refusal to fulfill his/her disclosure obligation under the
participation agreement will, as a practical matter, probably make it
impossible for the participants to reach a fair resolution. As with any
instance in which a participant fails to fulfill the participation agreement,
the other participant can elect to waive the violation and let the collaborative
law process continue. 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.
What if, sometime after entering into a settlement
as a result of a collaborative law process, a collaborative attorney discovers
that the other party failed to disclose information that should have been
disclosed?
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. To address this concern, the participation agreement
states that, in any settlement agreement reached during the collaborative
law process, the attorneys and the parties may wish to recite the material
facts upon which the settlement is based. |
