February/March 2009 / Features
New Dispute Resolution Process
The concept of collaborative law was developed in the early 1990s and has been used primarily in family law cases. Recently, lawyers have been exploring its application to commercial, employment and technology matters.
Civil collaborative practice involves a commitment to negotiations outside of court for the sole purpose of settlement. The commitment is embodied in an agreement, signed by the parties and their lawyers, in which all agree not to threaten or engage in court action during the process. The parties agree to voluntarily disclose information, engage neutral experts and withdraw collaborative counsel if the case does not settle. They agree on the protocols for the process, the goals for each side, potential impediments to settlement and any other issues that must be addressed in order to resolve the dispute. The process is confidential. Documents and information exchanged may be discoverable and admissible only if they would have been so independent of the collaborative process.
The collaborative process prevents the “battle of the experts” common in litigation. The parties jointly retain any experts necessary for the matter and share the costs. Either party can terminate the process for any reason. Meetings are used to uncover factors that may lead to termination and identify measures that keep the process on track. Nothing stated in the negotiations can be used at trial.
