What is Collaborative Law
In the last legislative session, Montana adopted the Uniform Collaborative Law Act. This Act created a new, contractually based, dispute resolution designed to save parties money if they are committed to working together to solve their differences amicably through settlement.
Collaborative law is a voluntary, contractually based way to resolve disputes for parties who seek to negotiate a resolution rather than having a ruling imposed on them by a judge or arbitrator.
The distinctive feature of collaborative law is that the parties are represented by lawyers during the negotiations. By contract, the parties agree that if the process does not result in an agreement, the lawyers are not able to represent the parties in court.
The parties enter into a Collaborative Law Participation Agreement in which they designate their respective lawyers and agree not to go to court for a decision until and unless the collaborative law process does not result in a resolution of the dispute. Among other things, the parties also agree to maintain a respectful dialogue; to voluntarily disclose information; hat communications during the collaborative law process are confidential and cannot be used as evidence in court or arbitration; and not to threaten lawsuits during the collaborative law process.
The goal of collaborative law is to encourage the parties to engage in problem solving rather than positional negotiating. In positional negotiating, the parties see the process as a contest to be won by one side at the expense of the other side. In problem solving, or what is sometimes referred to as interest-based, negotiating, the parties view the dispute as a joint problem that needs to be solved.
Lawyers can, and should, encourage their clients to engage in problem solving negotiations without the formality of a Collaborative Law Participation Agreement. The distinctive feature of collaborative law is the disqualification requirement. Disqualification of the attorneys if the dispute is not solved is the enforcement mechanism motivating both parties and their attorneys to insure that problem-solving negotiations actually occur. By entering into a Collaborative Law Participation Agreement, the parties send a powerful signal to the other that they truly intend to work together to resolve their differences amicably through settlement rather than a lawsuit.
Collaborative law is an attractive dispute resolution option for many people and businesses, especially those wishing to minimize the cost of resolving their dispute and maintaining post-dispute relationships with each other.
If you are considering using collaboration rather than litigation to resolve your dispute, contact Thomas T. Tornow, P.C. at www.tornowlaw.com or firstname.lastname@example.org.
Posted on Tue, June 30, 2015
by Thomas Tornow