Collaborative law is the practice of proceeding with a marriage dissolution without going to court (other than submitting a written stipulation settling all issues in the divorce). The parties contract with each other and their attorneys to refrain from using the court process to litigate or contest disputes. If the parties and their attorneys sign a participation agreement, it is understood that if either or both parties seek relief in court (other than processing the final, stipulated divorce decree), the collaborative attorneys will withdraw, and the parties will retain different counsel for the court proceedings.
The case proceeds based upon the negotiation of the parties, mediation or early neutral evaluation if a third party facilitator is needed, and an arbitrator or consensual special magistrate if there is a contested dispute in need of a binding decision.
When Collaborative Law first emerged in the 1990’s, alternate dispute resolution (ADR) (such as mediation and early neutral evaluation) was not yet as commonplace as ADR is now. During the last two decades, there has also been an increase in the availability of consensual special magistrates and arbitrators to provide for addressing contested disputes outside of court.
One drawback to the collaborative process is that the process breaks down without a certain level of cooperation from both parties. The parties and attorneys must reach agreement, where possible; identify the contested issues; and determine the forum and time frame for resolving the contested issues. If one party wants to delay the proceedings, it is possible to manipulate the process to prevent forward progress. In non-collaborative cases, an upcoming court date often provides incentive to move forward and deterrence from stalling. It is not clear what an effective incentive/deterrence is in collaborative cases. Therefore, it is important that both parties in a collaborative case have equal (or at least, comparable) motivation to get the case done.