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Birmingham Bar Association Spring 2014

Collaborative Law ratification via final order of the parties’ ultimate agreement). The process begins formally with a “participation agreement” between the parties and their lawyers which acknowledges the main facets of the confidential process: interest-based negotiations, good-faith bargaining, and voluntary discovery, with a primary goal being avoidance of court intervention. In fact, a central and necessary element of the agreement is that the lawyers involved are limited in their representation to the collaborative model: They may file with the court the participation agreement reached by the parties through use of the model, but they may not represent the parties should the process break down and require litigation. Under those circumstances, both attorneys must withdraw, and the parties lose the benefit of both the professionals involved and documents produced during the process, though the Act does allow an attorney to seek or defend an emergency (such as a Protection from Abuse) order if a successor lawyer is not immediately available to represent the party. Before the agreement is actually signed, the Act requires the lawyer to take specific steps to advise the party of the process, evaluate the situation as to a history of a coercive or violent relationships, and “continually assess” the situation throughout the procedure. Under the Act, the “Collaborative Law Participation Agreement” must be in a record, be signed by the parties, state the parties’ intention to resolve a collaborative matter through a collaborative law process under the Act, describe the nature and scope of the matter and the collaborative law process, and identify the lawyers. The filing of the participation agreement with the court operates as an application for a stay of the proceeding, and signing of the agreement is followed by assembly of a team of collaboratively trained professionals upon which the parties and lawyers agree, which may include a financial or other neutral expert such as an accountant and/or financial planner, a “coach” (typically a licensed mental health professional such as a psychologist or counselor) for each party to assist parties with emotional hurdles to resolving conflicts, and a child specialist to represent interests of the children as necessary. The number of members of the team and “...a central and necessary element of the agreement is that the lawyers involved are limited in their representation to the collaborative model...” choosing of individuals to make it up is dependent upon the parties’ particular needs and financial means. Once the team is assembled, negotiations begin via a series of private, faceto face meetings of clients, lawyers, and other necessary team members. Meetings generally alternate between attorneys’ offices, follow outlined agendas, and limit discussion to forward-looking goals rather than the blame-focused discussions often present in poorly-managed settlement negotiations or mediations or litigation preparation. Ideally, negotiations progress through the meetings as necessary to craft the particular terms of a formal agreement, which is subsequently filed into court and incorporated into a Final Judgment of Divorce or other consent type order. These are only highlights of the Act and the process to which it refers; those interested in having this procedure available for their clients should not only look closely at the requirements of the Act, but also participate and attend training seminars that are available. The Birmingham Collaborative Alliance (http://www.birminghamcollaborative. com/) is an active resource for information. If signing a formal agreement to collaborate and incurring the sort of frontloaded expense of such a process (which practitioners say results in an overall less expensive and more quickly-reached final settlement, not to mention one which can preserve and even improve the parties’ ability to work together in the future as necessary) really honestly makes all participating parties be accountable to each other and “work together in a joint intellectual effort” to amicably resolve all differences, collaborative law may prove quite beneficial to many potential divorce litigants. Anything that promotes agreements not only shows that parties can work together now, but also -- especially for cases involving children -- in the future when the situation evolves and changes occur that again need to be addressed. Although the “Collaborative Law” concept is relatively new, the process of putting emotions aside and everyone trying to work together to reach a common goal is not. Anything that promotes settlement and individuals moving forward in a healthy manner is a good thing. G Contributors G. R. Fernambucq and Heather Fann Birmingham Bar Bulletin/ Spring 2014 35


Birmingham Bar Association Spring 2014
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