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Collaborative Law involves the advance agreement entered into by the clients and the lawyers. Importantly, the lawyers execute this Four-Way Agreement as independent parties. The Four-Way Agreement limits the lawyers participation to the negotiation and facilitation of a settlement without the threat of litigation. If the parties decide to use the court system, they must hire lawyers other than the lawyers who participated in the Collaborative Law process. The lawyers agree to discontinue representing their client if the parties choose to litigate the dispute, which creates a practical incentive to resolve the dispute without the need for litigation. While Collaborative Law has not been universally defined, "[v]irtually all collaborative law leaders and practitioners believe that the disqualification agreement is the irreducible minimum condition for calling a practice collaborative law."

 

The Collaborative Law process is based upon a problem-solving model rather than an adversarial model. In order to resolve the dispute, the Four-Way Agreement requires that parties freely and timely exchange information and commit to joint problem solving. The typical Four-Way Agreement contractually obligates the parties to timely and fully disclose all relevant materials.⁶ Some Four-Way Agreements even require counsel to withdraw if he or she determines that the client is participating in bad faith. As a product of this agreement, the lawyers continued participation serves as an implicit certification of the clients good faith.

The process itself usually involves a series of meetings with all of the parties and their lawyers in attendance. These meetings, or "four ways," as they are frequently called, are designed to foster a team approach to creative problem solving that encompasses elements such as open and honest communication, cooperation, good faith, and willingness to listen. In this respect, the Collaborative Law process focuses on the future relationship of the parties. By taking the adversarial piece out of resolving a dispute, it is thought the Collaborative Law process allows the parties to settle the dispute in a manner that leaves them with a new productive relationship.

Cooperative Law, which is a much smaller movement than the Collaborative Law movement, uses the same principles as Collaborative Law, except that Cooperative Law does not involve a disqualification agreement. Cooperative Law therefore includes a written agreement to make full, voluntary disclosure of all financial information, avoid formal discovery procedures, utilize joint rather than unilateral appraisals, and use interest-based negotiation. Thus, Cooperative Law, as defined in this Opinion, is identical to Collaborative Law, with the exception of the disqualification agreement.