WHAT IS COLLABORATIVE LAW? SHERRIE R. ABNEY ©

What does Collaborate Mean to You? To a collaborative lawyer it means to --- Sit down with the client, the other parties, and their attorneys in a series of face-to- face meetings to define the interests, concerns and goals of all of the parties gather information develop options realistically evaluate the listed options and negotiate a solution

*How Do You Do That?* Let’s look at what lawyers don’t do-- They don’t Take control of all negotiations outside of the presence of clients Try to settle over the phone Do it at the court house Attempt to hide facts that are unfavorable their client Bluff Threaten Intimidate Pretend they have a concern for the other parties when they don’t Take charge of the client’s decisions Depose others or have their client deposed Make a public record of the proceeding Reschedule because the Judge is unavailable Make every effort to lay blame on the other parties Write nasty letters when they or their clients are irritated Stay up all night preparing for trial Worry due to having a client that will be a bad witness Are you beginning to get the idea?

You aren’t doing Mediation Why do people think that the collaborative process and mediation are the same thing? There are a couple of similarities— Meetings are confidential, and The purpose of both procedures is resolution of disputes. How are they different?

Mediation Can be Court Ordered Communications flow through the mediator Employs marathon sessions Conducted by a third party neutral Scheduled after formal discovery The parties attack all other parties’ positions and defend their own Relies on blame Usually employs positional bargaining Often does not involve face to face negotiations Relies primarily on statutory and case law Parties are focused on “winning” Adversarial

The Collaborative Process Non-adversarial Voluntary New Role for third party neutrals Employs a series of two to four hour sessions No formal discovery Parties do not defend “a” position Blame game is called off Interest based negotiation– the parties’ concerns Face-to-face negotiations with all parties present Decisions are made according to agreement of parties not the law Everyone wins or everyone loses

What’s the Difference in Adversarial and Non-adversarial? Explain what you want and WHY you want it. Parties stay in control of the outcome, and look outside the box for answers. Adversarial Defend your position and fight for what you want. Rely on the law and third parties to determine the outcome.

*Getting Started* Parties must be screened by a collaborative lawyer to determine if they are appropriate. All parties and lawyers must agree to participate. The lawyers prepare an agenda and schedule the first meeting.

*First Meeting* The participants-- Review and sign the participation agreement. (participation agreement is available at www.globalcollaborativelaw.com) Make any necessary procedural decisions and record them in the addendum to the participation agreement. Appoint someone to take minutes of the meeting. Begin the First Step.

*First Step* Remember what “collaborate” means to collaborative lawyers? To-- sit down with the client, the other parties, and their attorneys and define the interests and goals of all of the parties to the dispute...

*What does the First Step accomplish?* Focuses discussions on what the parties want rather than what their attorneys may think they should have. Allows all parties to express their interests as well as hear what the other parties want, how they feel, and why. A participation agreement creates a map to guide the participants through the process.

Step Two – Gather Information Requests by the parties are limited to relevant information. If you are asked for information, you deliver it. If you have relevant information and you are not asked for it, you still deliver it. If you are aware that any party is relying on incorrect information, you correct it.

What does Step Two accomplish? Full disclosure which– Provides the parties with the information necessary to make valid decisions. Allows the parties to decide if they need the assistance of an expert. Helps the parties understand the reasonableness of their interests and goals.

If You Need An Expert Collaborative Experts are— Objective Available in Greater Quantities More economical

*How Many Options Are There?* STEP THREE *How Many Options Are There?* AS MANY AS YOU ARE CREATIVE ENOUGH TO THINK UP

*What Can the Collaborative* Process Do that Litigation Can’t? In disputes that would require filing in more than one court, the collaborative process can combine them into one procedure. All parties can share their concerns with each other in a safe, private environment.

*What did Step Three accomplish?* Gave the parties the freedom to— Brainstorm options Change their minds Review their Goals and Interests Consider whether or not they have all of the information they need

Step Four Evaluate Options Discard options that are unnecessarily burdensome on one of the parties or impossible to accomplish. Select options that are realistic, achievable and that benefit all parties as much as possible.

What did Step Four accomplish? By waiting to evaluate options until all options are developed, the parties— Avoid premature decisions Have more confidence in the options they select Increase opportunities to settle

Step Five Negotiate Settlement The parties review the remaining options and negotiate a settlement agreement.

Guarantees There are no guarantees in any dispute resolution procedure “If you want a guarantee, buy a toaster.” Clint Eastwood

What if they don’t agree? The parties can provide for mediation and/or arbitration in an addendum to the participation agreement. The parties can terminate the process and proceed to litigation. In the event of termination, the collaborative lawyers withdraw.

Why do the lawyers withdraw? The withdrawal provision eliminates parties and lawyers who are not serious about settling. Knowing they will lose their jobs motivates lawyers to work harder. Lawyers are able to focus 100% on resolving the dispute. A safe environment for negotiations is created. Good interest based negotiators are seldom good at litigation.

*What does Paradigm Shift mean to Collaborative Participants?* A 180° shift in thinking Lawyers change the type of clients they accept Change in their approach to handling cases Change in behavior toward other parties and lawyers Clients will follow the lawyers’ lead

*Who can use the collaborative* process? All parties and attorneys who are involved in a dispute or negotiation and who are willing to proceed honestly and in good faith.

How does this affect You? You will ask a few additional open ended questions during the intake process. You do not make all the decisions on whether or not the party is a candidate for the collaborative process. If they qualify the parties are the ones to decide if they want to try participate. The collaborative lawyers are the ones to decide if they are candidates.

Beginning the Conversation There is no guarantee that any kind of dispute resolution procedure will get you what you want. I would like to ask a few questions to give me a better idea about what kind of lawyer you need

What’s the problem? Please tell me basically what kind of problem you have? What kind of person do you think the other party is? Why do you think that?

Determining if CL is an option Have you heard about Collaborative Law? It is a way of settling disputes without going to court. Do you think you might be interested in avoiding the court house and settling your dispute privately?