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What
is the Collaborative Law Center of Atlanta? What is the Collaborative Law Center of Altanta? In
order to successfully negotiate the treacherous and painful path of
divorce, collaborative advisors are needed- advisors who have expertise
in specific areas of the divorce process, and who will guide families
along the path so that at the end of the journey everyone remains
whole. The Collaborative Law Center of Atlanta is an alliance of divorce
professionals from various disciplines who have expertise in specific
areas of the divorce process. We recognize that the divorce process
as it currently exists is divisive, adversarial, costly, and emotionally
destructive to all family members. Our cooperative divorce approach
can eliminate litigation, minimize divisiveness, reduce the adversarial
component, decrease cost, and soften the emotional impact to families. What Are the Benefits of Collaborative Family Law?
What is the Goal of Collaborative Law? The
goal or purpose of collaborative law is to offer lawyers and their
clients a structured, non-adversarial alternative to an increasingly
adversarial system of dispute resolution. It guarantees consumers
of legal services high quality, skilled legal counsel to assist in
the evaluation and resolution of a problem, without litigation. For Whom is Collaborative Law a Good Idea? Not
every lawyer will want or be able to practice collaborative law. Not
every case will be appropriate for collaborative law, nor will every
client be interested in avoiding the adversarial contest. For many
lawyers, however, the adversarial experience has led to a belief that
the commitment of time, energy, and money to an adversarial case often
does not achieve an outcome which provides a cost effective or even
a good solution to their clients problems. Similarly, many consumers
of legal services are looking for experienced legal counsel and skilled
advocacy but do not want the stress and excuse of litigation. For
these lawyers and these clients, collaborative law is an excellent
option. Can a Lawyer Represent a Client Zealously If It Is Agreed in Advance Not To Go To Court? By
entering into a Collaborative Law Participation Agreement lawyers
and their clients have thoughtfully agreed to limit the lawyers role
within the contractual relationship to that of providing representation
for settlement purposes only. Nothing in the Canons of Ethics precludes
such a limitation. In stepping out of the adversarial process, the
collaborative lawyer does not give up the role of advocate for his
or her client. None of a lawyer's duties or obligations to a client
are affected by this limitation. Can a party quit during the process? Nothing
in the participation agreement precludes a party from terminating
the collaborative law process and pursuing litigation. However, the
client will have been advised at the outset that doing so will require
them to hire other counsel. Of course, the other side also will be
trading their collaborative lawyer for a litigator. How Does a Lawyer's Assessment of the Likely Outcome of the Client's Case if it Litigated, Affect the Way the Lawyer Approaches a Collaborative Law case? Although
the participation agreement prohibits threatening litigation, the
lawyer's advice strengths and weaknesses of the case showed and included
an assessment of the likely outcome if the case were to be litigated.
Application of the law and client's legal rights is a fair and appropriate
outcome in a collaborative process this assessment, would also include
consideration of all of the costs and risks of litigation. Is Everybody in the Lawyer's Firm Precluded From Participating in the Litigation in the Event the Collaborative Law Process is Unsuccessful? Yes.
Only in this way can parties be assured that there is no benefit to
be gained by counsel in failing to succeed with settlement. Can In-House Corporate Counsel Take Part as a Collaborative Lawyer? Yes.
In-house corporate counsel is in the unique position of being both
an attorney and a client simultaneously. If the collaborative law
effort fails, however, corporate counsel must retain outside lawyers
to handle the litigation. Why Must a Lawyer Resign If The Other Side Decides to Go to Court? The
requirement that all lawyers be disqualified in the event of a breakdown
guarantees that all participating counsel will be totally and exclusively
motivated to make the process succeed. Thus, all participants are
equally and fully invested in finding the solutions to all problems.
More subtly, it is believed that the way people participate in negotiation,
and especially the way lawyers participate, is affected by the certainty
that lawyer will never litigate the case. Openness, candor, and cooperation
replace guardedness, secrecy, and threats as the techniques most likely
to achieve ultimate success. Walking out in anger, or provoking the
other side to, ceases to be a viable tactic. How is a Lawyer's Relationship With a Client Different in the Collaborative Law Process, and How Do Lawyers Prepare Clients For It? First,
the lawyer never ceases to be the client's advocate and the client
is so assured. By entering into the participation agreement the client
has already decided and declared the intent to neither threaten nor
pursue litigation (an entitlement, however, which the client never
waives). Now the objective is to discern and attempt to satisfy the
interests of both (all) parties. To that end, all parties and counsel
must cooperate. Counsel will encourage their clients to speak candidly
about their own needs and desires, and to listen carefully to those
expressed by others. Collaborative lawyers remind and reassure their
clients that by treating the other side's interests with respect,
they are serving their client's goals and interests. Collaborative
lawyers are trained in collaborative communication skills and will
assist the parties in this endeavor. Can One Lawyer Practice Collaborative Law If The Other Side Has Not Signed A Participation Agreement? Can one lawyer practice collaborative law if the other side has not signed a participation agreement? It
is assumed that in most cases the parties will proceed on a collaborative
law basis only when all lawyers and clients have signed the participation
agreement. Circumstances could arise, however, when one party and
their lawyer decide to contract with each other with the premise that
the lawyer is hired only for settlement purposes, even when the other
side has not signed a participation agreement. For example, some lawyers
might decide they do not wish to litigate and a client might still
want their services, or some clients might be certain enough that
litigation is not in their interests that they would choose to establish
that limit up front. It may also be a useful strategy for one party
to approach another through their collaborative lawyer with a participation
agreement already signed. This would demonstrate a clear intent to
seek resolution through non-adversarial means and thus encourage a
more open and less defensive response. What if a Collaborative Lawyer is Approached by a Non-Trained Lawyer Wishing to Participate in the Collaborative Law Process? The
participation agreement allows a non-trained lawyer to enter into
a participation agreement with a trained collaborative lawyer (and
with their clients) when the Institute member is assured that the
non-member can and will abide by the terms of the participation agreement,
become educated about the collaborative law process as prescribed
by the Collaborative Law Institute of Georgia and agree to take part
in future formal collaborative law training. How Is Collaborative Law Different From Mediation? Mediation
involves the use of a third party neutral in facilitating the negotiation
and settlement of a dispute between the parties. Parties can always
walk out of mediation and proceed to litigate. In collaborative law
cases, lawyers and their clients will talk and negotiate with or without
the assistance of a third party neutral, unless they find such an
intervention would be useful. In mediation, the neutral cannot be
an advocate for one party over another, or propose a possible outcome
if the case is litigated. Mediators are committed to continuing the
dialogue until a satisfactory solution is reached since litigation
is not an option. What Is The End Result of a Collaborative Law Case? How Are Interests, Rights, and Agreements Secured? With
the advice and assistance of counsel, parties can conclude their discussions
however they wish, and secure any agreements by whatever methods are
appropriate. They might walk away satisfied, with no further action
needed. They might end with some extra-judicial agreement or with
some agreed court order or releases. There are no formal limitations
to what parties can agree to do to solve their problems. How Does the Practice of Collaborative Law Affect Attorney Fees? Representation
and fee agreements between attorney and client are not directly affected
by the participation agreement. What Can Collaborative Lawyers Do If Negotiations Reach Impasse? The
Collaborative Law Institute of Georgia is based on an interdisciplinary
network model. Collaborative lawyers can agree to employ experts,
such as therapist and financial experts, to advise both sides as to
disputed facts or law. The participation of interdisciplinary network
professionals can help move the case forward toward solutions. Finally,
collaborative lawyers and parties can hire a mediator at any time. Is the Collaborative Lawyer Required to Divulge Even Non-discoverable Information During the Collaborative Law Process? Unless
otherwise agreed, by signing the participation agreement, the collaborative
lawyers and clients agree to provide good faith responses to any good
faith questions or requests for information by the other party. In
this context, a good faith question or request for information is
one that is reasonably calculated to assist in assessing the merits
and/or value of a party's claim or to otherwise further the process
of reaching a settlement of all issues. Since this approach uses a
standard for disclosure that is different from that used in traditional
discovery, a collaborative lawyer could potentially be obligated to
divulge some information that he/she might have avoided disclosing
in a traditional discovery context. If Information Is Requested in Good Faith but Is Otherwise Protected from Disclosure by a Privilege, must a Collaborative Lawyer Disclose It? The
informal good faith question/good faith response approach is not intended
to require any party to disclose privileged information. Certainly
a party is free to do so. No such disclosure of privileged information
indeed, no disclosure of any kind made during the collaborative process
could ever be revealed to any court for any purpose except to enforce
an agreement reached during the collaborative process. Is a Collaborative Lawyer Required to Disclose Information That the Other Side Has Not Requested, but Which May Be Important to the Case? Yes.
The informal good faith question/good faith response approach is intended
to require any party to disclose information that may be relevant
to the settlement of the case. The parties and attorney are committed
to preventing abuses that would naturally impede the collaborative
law process, including one party inundating the other with mountains
of information that will be of no use to the other party. In the collaborative
law process, the goal is to provide the parties with the information
needed to resolve their dispute. What Happens If a Party Doesn't Fulfill its Disclosure Obligation under the Participation Agreement? Participation
in the collaborative law process is based on the requirement that
the parties to the participation agreement (both attorneys and clients)
have acted in good faith and have provided accurate information as
required under the good faith question/good faith response approach.
Thus, a party's refusal to fulfill its disclosure obligation under
the participation agreement will make it impossible for the parties
to reach a fair resolution. When an attorney learns that his/her client
has withheld or misrepresented information that should have been disclosed,
the participation agreement requires the collaborative lawyer to withdraw.
What If, Sometime after Entering into a Settlement as a Result of a Collaborative Law Process, a Collaborative Lawyer Discovers That the Other Party Failed to Disclose Information That Should Have Been Disclosed? In
this respect, a settlement agreement reached via a collaborative law
process is no different from any other negotiated settlement agreement,
and the former is no more or less susceptible to being annulled for
such a reason than the latter. Any settlement agreement reached during
the collaborative law process, the attorneys and the parties should
recite the material facts upon which the settlement is based. What if the Settlement is Not Achieved Cooperatively? In
the event the parties are unable to arrive at a settlement through
the Collaborative Law Process, the lawyers withdraw from the case
and the parties are free to retain trial attorneys to pursue their
matter in court. The result is that the parties will have the best
representation for each phase of the proceeding, and possibly save
time spent in a subsequent, costlier trial. For What Type of Client Does Collaborative Law Work? People
who have at least "a little good will" toward wanting to work out
a settlement are candidates for a collaborative law approach. Without
that small bit of openness in the process, collaborative law will
probably not work. Collaborative law requires clients who want to
make their own decisions regarding their lives, and who are capable
of seeing more than one way to resolve an issue. |
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International
Academy of Collaborative Professionals CLCA
members are |
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| Collaborative
Law Center of Atlanta, Inc. |
1756
Century Blvd., NE, Atlanta, GA 30345 |
(404)
475-0333 |
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