Principles and Guidelines For the Practice Of Collaborative Law
1.01. The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interests of parties and their families in typical Family Law matters to commit themselves to resolving their differences with minimal conflict and no litigation. We seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well being of the parties and their children.
1.02. One of our major goals in adopting the Collaborative Law process is to maximize the settlement options to the benefit of all parties and minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to the participants and their families. We commit ourselves to the Collaborative Law process and agree to resolve our differences justly and equitably.
II. NO COURT OR OTHER INTERVENTION
2.01. By electing to treat this Family Law case as a Collaborative Law Matter, we, as parties and attorneys are committing ourselves to settling their case without court intervention. The parties agree to give complete, full, honest and open disclosure of all information, whether requested or not, and to engage in informal discussions and conferences for the purpose of reaching a settlement of all issues. All attorneys, accountants, therapists, appraisers and other consultants retained by the parties will likewise be directed to work in a cooperative effort to resolve issues without resort to litigation or any other external decision making process.
III. LIMITATIONS OF COLLABORATIVE LAW PROCESS
3.01. In electing the Collaborative Law process, we understand there is no guaranty of success. We further understand we cannot eliminate concerns about the disharmony, distrust and irreconcilable differences which have led to the current conflict. While we are intent on striving to reach a cooperative and open solution, success will ultimately depend on our own commitment to making the process work.
3.02. It is consistent with the Collaborative Law process that the parties act in their own best interest. Cooperation does not mean that a party must put the interests of the other ahead of the self (except where it is strategically advantageous to do so). It is also true that open and cooperative agreement-making insures the greatest likelihood of maximizing the possible outcome to each party. The parties may continue to act in their own best interests, in areas which are outside the dispute, such as in changing estate plans and future financial and other activities.
IV. PARTICIPATION WITH INTEGRITY
4.01. As participants in the Collaborative Law process, we are concerned about protecting the privacy, respect and dignity of all involved, including the parties, attorneys and consultants. Each participant shall uphold a high standard of integrity, and specifically shall not take advantage of inconsistencies or miscalculations of the other, but shall disclose them and seek to have them corrected.
V. EXPERTS AND CONSULTANTS
5.01. In selecting outside help, the parties are encouraged to retain joint experts or consultants for the express purpose of minimizing expenses of the process. Selection of a joint expert or consultant, shall not obligate the parties to accept the report or opinion of that expert. Each party may retain separate or additional experts as desired in developing information relevant to reaching agreement. In the event a party retains a separate expert, any such expert or consultant shall be directed to follow the spirit and direction of these Principles and Guidelines. If desirable, the parties may request the experts and consultants to collaborate with one another, meet and confer, and where appropriate, render joint statements or opinions on the issues in dispute.
5.02. In resolving issues about sharing the enjoyment and responsibility of any minor children of the parties, the parties, attorneys and therapists shall make every reasonable effort to reach amicable solutions that promote the best interests of the children. The parties agree to act quickly to mediate and resolve all differences related to the children in a manner that will promote a caring, loving and involved relationship between the children and each parent.
VI. NEGOTIATION IN GOOD FAITH
6.01. The parties are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement and to refrain from taking positions. Each is encouraged to speak freely and express his or her needs, desires and options without criticism or judgment by the other. Neither party will use the threat to withdraw from the process as a means of achieving a desired outcome.
VII. DISQUALIFICATION BY COURT INTERVENTION
7.01. The parties and their attorneys have signed the Stipulation and Order re: Collaborative Law and have agreed to be bound by its specific terms and provisions. The parties understand that their attorneys' representation is limited to the Collaborative Law process. Thus, while your attorney is the client's advisor, representative, counselor, advocate and negotiator, he or she may not represent the client in court, nor go with the client to court in person, nor be named as the attorney-of-record on any document filed with the court other than a mutual stipulation or agreement of the parties, in this, or any related judicial proceeding.
7.02 In the event a party or attorney deems it necessary or unavoidable that contested, unilateral pleadings be filed with the court, each attorney will be disqualified from continuing to participate in the action on behalf of any client.
VIII. WITHDRAWAL OF ATTORNEY
8.01 If either attorney deems it appropriate to withdraw from the case for any reason, they agree to do so immediately by a written Notice of Withdrawal to the court and the other party and his or her attorney, in compliance with all existing procedures and rules of court. This may be done without terminating the status of the case as a Collaborative Law Case.
8.02 The party losing his or her attorney may continue in the Collaborative Law process without an attorney or retain a new attorney who will agree in writing to be bound by the Stipulation and Order re Collaborative Law and these Guidelines and Principles.
X. ELECTION TO TERMINATION COLLABORATIVE PROCESS
9.01. If either party decides that the Collaborative Law process is no longer appropriate, and elects to terminate the status of the case as a Collaborative Law matter, that party agrees to do so immediately with written notice of the Termination Election to the court (where the Stipulation to Collaborate is already on file), the other party and his or her attorney.
9.02. The termination of status may also occur automatically in the event a party deems it necessary to proceed to court in an emergency to protect their property, themselves or their children. This process is also outlined in the Stipulation re Collaborative Law.
X. SELECTION OF NEW ATTORNEYS
10.01. The parties understand that in the event of the termination of the status of the case as a Collaborative Law matter, it will be necessary to select new attorneys and additional fees will likely be required in retaining new counsel.
Chip Rose is a nationally-recognized expert in
divorce mediation and collaborative family
Karen Russell, San Jose CA 11/06/02
These Principles and Guidelines are an adaptation of the original drafted by the Collaborative Law Association in Santa Clara County, California. For the most current version, please go to www.Nocourt.org.