Many lawyers and clients have been saying that the costs of litigation are out of control. This is perhaps most evident in the area of family law, where the personal and financial costs of bitter court fights are staggering. Corporation counsel and small business people say the same thing: Even when we win, we lose. The costs, when measured in lost relationships, lost productivity and fees, far too often outweigh the gains.

Collaborative law is a viable option to litigation and even to mediation; collaborative law is a voluntary process which encourages both the clients and the lawyers and other involved professionals to participate in a good faith, non escalating, honest search for appropriate solutions.

As spelled out in the Collaborative Law Participation Agreement, collaborative lawyers and their clients approach each other and their disputes with a written commitment not to sue or even threaten to sue. In signing the Participation Agreement, both lawyers and parties pledge to cooperate in a good faith effort to appraise and resolve the dispute fairly, and to voluntarily disclose relevant information. Also, if one party changes its mind and chooses to initiate court action, the collaborative lawyers all must withdraw from the case and the clients will have to start over with new litigation lawyers. The collaborative lawyers will cooperate fully in the transfer of the case to the litigation counsel. However, from the moment of an adversarial court filing, the collaborative lawyers (and their firms) are prohibited from receiving any additional fees from the case. This is the heart and the discipline of collaborative law. Lawyers function as counselors, advisors, problem solvers.. They use all of their legal acumen and advocacy skills to analyze problems and work out solutions that their clients can accept without going to court.

Correlatively, each party makes a formal commitment to find a way to resolve the dispute in a manner that is also acceptable to the other, even if the process of doing so is difficult.

Collaborative law may not be for every lawyer or every client, but it is an effective route to resolution that is an option in family or civil disputes. The skills needed for the effective practice of collaborative law will not come easily or naturally to every attorney or every client.

What parties can realistically hope to do is trade the antagonistic feelings that result from a hard fought battle, for a genuine sense of resolution. They can hope for significant savings in the transaction costs of litigation. They can expect much greater compliance with the terms of the collaboratively reached agreement than the terms of an imposed order. And they can expect a continuing, if not improved relationship with the other party.

Responses to the idea of collaborative law have been quick and positive. Moving from the idea to the practice, however, poses challenges. The formal commitments not to litigate and to disclose all pertinent information, for example, introduce major changes to the traditional practice of law.