Diane D. Hitzemann, Mediator and Collaborative Attorney

Collaborative Law

Settlement by Agreement

In the collaborative law process, parties in legal conflict retain trained collaborative lawyers in order to resolve their differences and attain legal resolution to the conflict by engaging in client-centered dialogue in a safe environment. The commitment by all parties and counsel not to litigate the dispute is the fundamental basis of the process. Settlement by agreement is the sole purpose and goal of the legal representation; interest- based, cooperative negotiations replace adversarial maneuvering, and litigation is seen as a last rather than a first resort. In the collaborative approach, the lawyers and clients must learn to come to the process guided by their spirit of good will and motivation for a prompt and amicable resolution meeting their needs, rather than by their anger and resentments. The role of the lawyers is to help their clients arrive at an acceptable settlement and get on with their lives.

From Dispute to Resolution

The primary objective of the collaborative process is getting parties from dispute to resolution efficiently, and with as little financial and emotional damage as possible, while securing an agreement which addresses their true interests. It is based upon a problem-solving model rather than an adversarial model. The focus is on the future rather than the past and on rebuilding relationships rather than finding fault. Parties are encouraged to communicate openly and respectfully--to hear and understand each others’ needs and interests, and to come to agreement based on those needs and interests, rather than on their individual positions.

Collaborative Process

The lawyers are trained dispute resolution professionals who work as guides, advisers, legal counselors and facilitators. Solutions are worked out in direct four-way negotiating sessions with clients and lawyers participating; the lawyers do not control communications or outcome. When brought into the process, financial and mental health/child specialist professionals are neutrals, not hired guns. All participants say what they see and believe to be true in a transparent process, which empowers the clients who will need to live with the results to have ultimate responsibility to determine the outcome.

The Participation Agreement

The cornerstone of the collaborative process is the binding Participation Agreement signed by all parties and counsel.

  • Contractual commitment of collaborative lawyers to resolve dispute outside the courtroom and for parties to cooperate in achieving an equitable resolution;
  • Commitment to a good-faith, interest-based and respectful bargaining process;
  • Voluntary, early, complete and continuing disclosure of information;
  • Joint retention of all experts as neutrals to assist in resolving differences without litigation in a confidential process;
  • No threat of or resort to court proceedings by parties or counsel during participation in the collaborative process;
  • Commitment by lawyers to withdraw from representing a client known to be acting in bad faith.

Benefits of Collaborative Practice

Parties control the quality and shape of the outcome. Parties own the resolution of disputes, because results are always consensual; no third party dictates dispute resolution, so post resolution conflicts are rare.

The transparent negotiating process results in creative win-win solutions. Parties and counsel say what they see and believe to be true as they reason with one another, whereas litigation is characterized by a sequence of two-way communications between the lawyers, who control the exchange of information for strategic advantage.

Any cooperative possibility can be used in crafting creative solutions; court determination of disputes in litigation is characterized by constraints of limited jurisdiction, limited time and limited attention.

The destructive escalation of adversarial hostility can be eliminated; the adversarial process can cause further damage to the relationship and destroy potential areas of future mutual cooperation between the parties.

Maximum privacy of the parties is maintained; parties must agree as to whether and how the dispute becomes public information.

Cost has typically been found to be much less than litigating the same set of issues.