New North Carolina Law Encourages Collaboration

Collaborative law

Relationship counseling for business partners? Family counseling for trust and estate disputes? Under the recently enacted Uniform Collaborative Law Act, this is closer to the reality! Long an option in divorce proceedings, collaborative law now offers parties to civil disputes in North Carolina a new alternative to lengthy, public, and expensive court proceedings.

Collaborative law may be especially attractive to business partners or family members engaged in trust or estate disagreements because it focuses on maintaining and restoring relationships while offering parties the freedom, flexibility, and creativity to craft practical solutions to their legal disputes. Here are answers to some frequently asked questions about collaborative law:

What is Collaborative Law?

Collaborative law is a type of conflict resolution that allows parties to avoid traditional litigation. Collaborative lawyers guide and empower the parties to identify issues, interests, and needs, and then work together to craft a mutually beneficial solution that addresses all parties’ goals and objectives. The ultimate result is sustainable in the long-term and does not inflict any further trauma to the parties or their relationship with one another. In the collaborative law process, the parties maintain autonomy and self-determination as they work toward solving their legal dispute with dignity, honesty, and integrity.

How Does the Collaborative Law Process Work?

In this type of alternative dispute resolution process, each party to the dispute has his or her own lawyer, with whom they meet as needed. However, unlike the traditional litigation model, all the parties in collaborative law also meet together, along with each of their respective lawyers. The collaborative law process starts with the execution of a participation agreement, which establishes the rules of engagement to which the parties agree to abide. The collaborative law process typically includes a number of meetings with all parties and all lawyers seated equally at the table. The parties freely and openly share information necessary to inform everyone of the facts and circumstances in order to craft a resolution that meets all parties’ needs. The parties may also opt to jointly retain a consultant (e.g., appraiser, accountant, other expert) to provide information that may aid in the resolution process.  

What are the Benefits of Collaborative Law?

  • Cost savings on legal fees;
  • Cost savings on court costs, deposition fees and discovery fees;
  • Maximum flexibility;
  • Privacy and confidentiality;
  • Efficiency, speed of resolution and the ability to avoid court delays, especially during the COVID-19 pandemic;
  • The possibility of maintaining and/or repairing relationships; and
  • Autonomy and control over the outcome.

What are the Potential Drawbacks of Collaborative Law?

It is important for the integrity of the collaborative law process that all parties freely and willingly choose to engage in the collaborative law process. If any party does not honor or uphold the spirit of the process, or the rules of engagement outlined in the participation agreement, then the process may be compromised. Additionally, if the parties do not reach a resolution, or any party chooses to exit the collaborative law process, then all of the collaborative attorneys are disqualified from representing any of the parties in traditional litigation. This is a core tenet of the collaborative law process and ensures that the parties and the lawyers are fully committed to the process of finding solutions, and able to communicate openly and freely without any hidden agenda or bias toward litigation. The event of an impasse is a risk that would require hiring new counsel and bringing them up-to-speed on the facts.

 

Anytime there is a conflict, it would be wise to consider the collaborative law process and determine whether the numerous advantages and opportunities it offers outweigh the possibility of potential drawbacks. Navigating a dispute within a closely held business can be stressful and challenging. When personal and professional relationships are paramount and parties seek an efficient means to resolving their legal issues without going to court, the collaborative law process may be the answer.

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Colleen Byers

Colleen L. Byers

Colleen Byers concentrates her practice in the areas of guardianship, trust, estate and fiduciary litigation, employment matters, and alternative dispute resolution.
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