I set out below what may been seen as summary of standard Principles and Guidelines for Collaborative Practice taken from Pauline Tesler's publication 'Collaborative Law; Achieving Effective Resolution in Divorce without Litigation.' Used in a modified form by South Australian Collaborative Practitioners.
Principles and Guidelines for the Practice of Collaborative Practice
The essence of Collaborative Practice is the shared belief of the participants that it is in the best interests of the parties and their family to avoid adversarial legal proceedings and to adopt a conflict-resolution process that does not rely on a court-imposed resolution. Collaborative Practice relies on an atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future wellbeing of the parties and their children.
One of the major goals in choosing Collaborative Practice is to minimize, if not eliminate, the negative economic, social, and emotional consequences of the traditional adversarial legal process to the parties and their family. The divorcing parties in signing this document commit themselves to the Collaborative Pratice process and undertake to devote all their efforts to resolving their differences constructively, justly, and equitably.
NO COURT OR OTHER INTERVENTION
By electing to use Collaborative Practice, the parties and their Collaborative Practice professionals commit to the purpose of resolving all divorce-related issues without court intervention. The parties agree to give complete, full, honest, and open disclosure of all information having a material bearing on the case, whether requested or not, and to engage in informal discussions and conferences for the purpose of reaching resolution of all issues. All legal, financial, and mental-health professionals working as a teamwill likewise work in a cooperative effort to resolve issues constructively, without resort to litigation or any other third-party decision-making process.
LIMITATIONS OF COLLABORATIVE PRACTICE
In choosing Collaborative Practice the parties each understand that there is no guarantee of success. They also understand that they cannot eliminate concerns about disharmony, distrust, and irreconcilable differences that have led to the current circumstances. While they are intent on reaching a cooperative and complete resolution of all issues, they understand that their actual experience in our Collaborative Practice may fall short of that goal.
Even though they have chosen Collaborative Practice, they understand that each of them still expected to protect his or her respective interests and not to lapse into a false sense of security in the assumptions and expectations each holds about the other, the Collaborative lawyers, or the Collaborative Practice process. Subject to the requirements of applicable law and the good-faith commitments of these Principles and Guidelines, each of them may and should continue to act in their own respective best interests, even where those interests may diverge from the other party’s interests. They both understand that they should not lapse into a false sense of security. These good-faith undertakings address how they will conduct themselves during negotiations and are not a substitute for attending carefully to their own respective interests and concerns during all phases of the Collaborative Process.
Each party understands that while both of them, both their lawyers, and the other professionals are all affirm their good-faith undertakings about how they will and will not behave during the Collaborative Process.
PARTICIPATION WITH INTEGRITY
Participants in the Collaborative Process all affirm their commitment to respect the dignity of all participants, including parties, lawyers, and if applicable, family relationship specialists, financial specialists, child specialists, and any consulting professionals. Each will uphold a high standard of integrity. Each undertake not to take advantage of inconsistencies, misstatements of fact or law, or others’ miscalculations, but rather to disclose them and seek to have them corrected at the earliest opportunity. In the event a Collaborative Practice professional discovers inconsistencies, misstatements of fact or law, withheld information, or miscalculations by a party or by any other professional, the Collaborative Divorce professional is expected to inform that person of the discovery and remind him or her of the obligations to make the required disclosure. In the event a Collaborative Practice professional discovers that she or he has made a misstatement of law or a miscalculation, he or she is expected to disclose and correct the same. In the event a Collaborative Practice professional discovers that another Collaborative Practice professional has made a misstatement of law or a miscalculation, she or he is expected to inform the other Collaborative Divorce professional of the discovery and request disclosure and correction.
DISQUALIFICATION BY COURT INTERVENTION
The parties, understand that the collaborative lawyers’ representation is limited to the Collaborative Practice process. Thus, while each Collaborative Lawyer is an advisor and advocate bound by all professional obligations of a lawyer, the parties enter into a binding agreement with one another and with their respective lawyers that neither lawyer can ever represent either of the parties in court in proceedings against the other spouse, nor be named or remain as lawyer of record on any document filed with the court in our divorce proceedings.
I recommend you speak to a Collaborative Practitioner for further information about Collaborative Practice.