I Won’t See You in Court

WORDS BY WORDS BY Timothy S Mescon Ph.D Timothy S Mescon Ph.D

Imagine, if you will, a legal process where all parties and their attorneys sign a binding commitment not to litigate. “No!” you say, this cannot be. Well, in October, 2005, nearly 500 lawyers, financial experts and mental health professionals gathered in Atlanta at the annual meeting of the International Academy of Collaborative Professionals to celebrate the continued growth and success of one of the hottest movements in family and commercial law. This is a movement that is having a profound financial impact on both families and businesses around the globe.

Lauren Alexander (www.collaborativelawoffi.ce.com), recently named one of Atlanta’s “super lawyers” and one of the first attorneys in the nation to exclusively devote her practice to Collaborative Law, co-chaired the convention. After serving as a prosecutor and litigator for a quarter century, Alexander claims that the positives accrued to all parties by avoiding litigation and court are enormous.

And the judicial community is likewise embracing this nonconfrontational, collaborative resolution process.

Why in the world would a business dean and author devote a column to the discussion of Collaborative Law? In the litigious world in which we all exist, a shining star has emerged in family law practice in recent years that is not only gaining great traction in the US and Canada but huge support in Europe as well. More importantly, and from a business perspective, this collaborative approach to problem resolution holds great promise for commercial transactions and disputes.

Because it ends a marriage, divorce can be a painful experience. Recognizing this, many individuals have sought a more constructive way of divorcing. For them, Collaborative Practice (Collaborative Law and Collaborative Divorce) has been the answer. It promotes respect, places the needs of children first and keeps control of the process with the spouses.

Collaborative Practice is a way for parties to work as a team with trained professionals to resolve family or commercial disputes respectfully, without going to court. The term encompasses all of the models that have been developed since Minnesota lawyer Stu Webb created the Collaborative Law model in the 1980s.

While Collaborative lawyers are always a part of Collaboration, some models provide financial specialists, or child specialists and divorce coaches in family disputes. For example, CPA and valuation expert, David Ellner with Atlanta’s largest independent accounting firm, HA&W has been an active participant in the Collaborative Law process. According to Ellner, this is a natural, non-confrontational approach to both commercial and domestic issues. In these models, the clients have the option of starting proceedings with the professional with whom they feel most comfortable. Then the clients choose the other professionals they need.

Although Collaborative Practice comes in several models, it is distinguished from traditional litigation by its inviolable core elements. These elements are set out in a contractual commitment among the clients and their chosen collaborative professionals to:

You may think Collaborative Law sounds like mediation. But in mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. The mediator cannot give either party legal advice and cannot be an advocate for either side. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.

Collaborative Law, on the other hand, was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to confl ict settlement as the sole agenda. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by both lawyers and the parties, until both parties are satisfied with the document.

Preliminary research indicates that the cost savings associated with resolving disputes collaboratively are enormous, as much as 30% to 50%—a true win for all parties involved. Additionally, and perhaps just as importantly, the process keeps litigation out of the court system and focuses on constructive problem resolution.

For more information visit www.collaborativepractice.com