The Development of the Participation Agreement
The cornerstone of our Collaborative practice is the Participation Agreement and the backbone of the agreement is its disqualification clause. Once clients and their attorneys sign the Collaboration Contract, their collective ability to seek, or even think about seeking, a unilateral resolution of their issues by court order, the metaphorical use of force, is taken out of the universe of problem solving alternatives. A virtual "safe harbor" is created by the Agreement's explicit guarantees of full disclosure and commitment to open minded discussion of all possible options and outcomes, without draconian fears of litigation.
I review the terms of Collaborative Participation Agreement with my clients during our initial meeting when we are discussing their process options. We read it together as it helps explain exactly what is expected of each participant in the process. The contract has been intentionally written for the lay person, not the lawyer. I have an ethical professional duty to ensure that each of my clients makes an informed decision about the nature of the process and the nature of my representation. Not only does the Collaboration Contract contain the disqualification clause, so does my separate retainer agreement by which the client hires me. . The review process is then repeated with both clients present at the first Collaborative meeting just prior to signing. It is an important anchor for future reference, if candid and frank discussions should ever become emotional. If each client has expressed an understanding of Collaborative which is in sync with their spouse's understanding, as well as in sync with the expectations of the Collaborative Professionals in the case we have a tool for restoring balance and commitment. The basic tenets of the Collaborative Process are stated simply in the contract, and they can help provide the needed anchors, along with notes that contain reminders of each person's expressed commitment to that process.
The disqualification clause eliminates the immediate potential for a "War of the Roses" scenario. The traditional divorce paradigm has become so unsatisfactory that the international collaborative divorce movement has evolved to take its place. We have learned that only a signed participation agreement can quiet veiled threats of litigation and the take it or leave it positioning that is so often present in traditional attorney negotiated cases. Without the foundation of hopeful trust and cooperation, which the signed Collaborative Contract symbolizes, the suspicion and fear that so often leads to divorce in the first place will be ever present throughout any negotiation, and long after the decree of dissolution is finalized.
