The Bay Area participation agreements all provide (have since early '90's) that
neither lawyer and none of the neutrals who participate can EVER represent
either party against the other in litigation. I like that approach, as it
parallels "conflicts" thinking and is a clear bright line. It also provides a
nice continuing incentive to return to the collaborative process for future
conflicts, which we refer to in our cross-disciplinary team trainings as "the
predictable speed-bumps that you need to plan for." Our last fourway
collaborative law meeting is usually a review and signing of the settlement
agreement, at which we discuss what kinds of future conflicts could arise and
confirm agreements about how they will be handled. The agreement itself often
includes a standard paragraph about resolution of future disputes, with three
or four steps that the parties agree to utilize prior to anyone going to court:
self-help orally, written proposals for resolution, and collaboration,
followed only then by adversarial representation. The fact that the lawyers
they are used to working with can help only up to the third stage, not
litigation, creates an intention in advance to avoid litigation that brings the
"carrots and sticks" concepts favoring collaboration out into the future.
Those are real values, to my mind, that are not outweighed by permitting
collaborative counsel to become litigation counsel.. Pauline Tesler
----- Original Message -----
From: Norma Trusch
To: CollabLaw@xxxxxxxxxxxxxxx
Sent: Friday, August 03, 2001 7:49 AM
Subject: Re: [CollabLaw] hpothetical CL query
Thanks for the input. It's a great idea to include a CL provision in the
decree.
Norma Trusch
McElweelaw@xxxxxxx wrote:
We have polled the Cincinnati group informally two or three times over the
past 3 years, and the consensus of our group, and our operating principle,
is
that the post-decree issue is a new matter, and you are not excluded from
representing the client in a litigated proceeding by the pre-decree signing
of the participation agreement.
The consensus also is that the spirit of collaborative law would
compel the parties and attorneys, assuming they are the same as pre-decree,
to reenter the collaborative process. I am not aware of any case in which
attorneys have litigated a collaborative case post-decree.
I was counsel in the first signed case our group had, in January
1998. It was successfully concluded. We have been involved in post-decree
discussions for the past 6 months; we reentered the collaborative process
without any motions being filed and have successfully negotiated the
necessary modifications. We did not sign a new participation agreement for
the post-decree matters. I think this is the model our group has been
following.
Our court in Hamilton County requires shared parenting plans to
provide for mediation before the court will consider post-decree parenting
matters. Many of us have expanded that provision to include reentering the
collaborative process as an option. I also have included a provision in
the
separation agreement that the parties will reenter the collaborative
process
for any post-decree problems.
Regards,
JLMC
John L. McElwee
9902 Carver Road
Box 42414
Cincinnati, Ohio 45242
Telephone: (513)-984-1811
Fax: (513)-984-1812
Email: McElweeLaw@xxxxxxx
Website: http://www.mediate.com/McElwee ;
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