- If the collaborative process fails, both lawyers and their law firms must withdraw from acting for their respective clients and the clients must start over with new litigation lawyers before they enter the court process.
Prior to signing a Collaborative Practice Contract, both lawyers on the file must have received common training in the theory and structure of the Collaborative Practice Process and should have common training in Interest-Based Negotiation theory (IBN) and perhaps extensive Mediation training. The Collaborative Practice Process is based on both clients and lawyers using Interest-Based Negotiation techniques inside a common, clear collaborative structure.
The goal of Collaborative Practice is for all four parties to the contract to reach settlement that is acceptable to both clients.
The two collaborative lawyers are hired as "settlement counsel" to:
- Focus on settlement from the beginning of their retainer;
- Assist the clients in communicating effectively about their concerns and what is important to each client (their interests) and determining what they need to talk about or questions they need to answer (their issues);
- Assist the clients in gathering information the clients need to make informed decisions;
- Assist the clients in creating the maximum number of options that they can explore;
- Assist their clients in effective negotiations based on the clients' interests;
- Provide legal advice to their client throughout the process; and
- Assist the clients with finalizing their agreement - closure.
If the best efforts of the two "settlement counsel" and their clients fail, the Collaborative lawyers places will be taken by "litigation lawyers" who will enter the court process.