Collaborative law shifts the focus from the adversarial system, where the courts or other tribunals determine the outcome after a combative litigation, to a cooperative and respective problem solving approach, where each party retains counsel specifically trained in collaborative law to assist in achieving settlement. The purpose is a commitment to settle from the onset.
The tenants of collaborative law include the following:
- Both parties must be represented by collaborative counsel.
- Collaborative counsel is hired for the specific purpose of reaching a settlement without litigation.
- Although clients do not permanently give up their right to litigation, they temporarily take that option off the table.
- If the parties fail to reach a resolution, one or both may file a lawsuit. However, the collaborative lawyers must withdraw, and the parties must hire new counsel. For this reason, all participants in the collaborative process have an economic and emotional incentive for success.
- Collaborative law proceeds with a series of four-way meetings in which clients participate equally with lawyers.
- Resolution is achieved by joint problem solving, seeking to satisfy each party's underlying interests.
Collaborative law can be used in the following practice areas: divorce, child custody, guardianships and employment law disputes involving closely held businesses.