When individuals decide to enter the collaborative process to engage in a collaborative divorce, many wonder what the parameters of the process will be. They wonder what the ground rules will be. They might even wonder what guarantees they have that the process will be undertaken in a fair and orderly way.
In the collaborative process, a participation agreement is entered into by the parties before the process begins. The participation agreement sets forth the essential terms about the process. It is vital that parties have a signed participation agreement before the process begins.
Some of the items contained in the participation agreement can be as follows:
First, the parties ordinarily have to agree what the dispute is and what issues will be addressed in the collaborative process. In a divorce for example, the parties might have a wide-range of issues they may need to address from custody, child support, spousal maintenance, property division and attorney’s fees.
Second, the parties ordinarily agree to the essential terms of the collaborative process. For example, parties agree to communication protocols, that the parties will keep the negotiations confidential and that they will act in good faith.
Third, the parties ordinarily agree to fully exchange any and all necessary information. This will help ensure that the parties have all the information they need to negotiate and attempt to resolve the matter. It also ensure that parties do not have to obtain this information in traditional ways, like formal discovery, subpoenas or depositions.
Fourth, the parties ordinarily agree that if either party proceeds with litigation, the collaborative process ends. The collaborative lawyers enlisted in the matter also cannot participate in any aspect of any litigation if the collaborative process breaks down. This gives collaborative lawyers every incentive to help the parties settle their matter.
Fifth, the parties ordinarily agree to use neutral experts to help assist them in the process from divorce coaches, financial neutrals and child custody professionals. These experts can be critical in terms of helping the parties resolve the underlying issues of the case.
Of course, there can be other issues addressed in the participation agreement as well based on the facts and circumstances. Every case is different. And these differences might require different language in the participation agreement. Nonetheless, it is important that parties have this participation agreement signed and entered into prior to beginning the collaborative process. The participation agreement is really the first step.