A hallmark of a Collaborative case is that the participants have signed a “Participation Agreement.” This document may seem insignificant, but in fact it has great meaning for the process, signifying that the couple has made a conscious choice to stay out of court and maintain control over their own decision-making.
The Participation Agreement sets the tone for the team and the process. Often, we will read through the whole agreement aloud at the first joint meeting. This is an opportunity to be present and think about what is being agreed to and asked of each participant in the team process.
Some tenets of Collaborative practice is that it is based on honesty, satisfying the interests of both participants, dignity, and respect. The process is focused on the future, meaning that the past will be discussed as necessary, but the overall work will be geared towards creating a future for the couple/family based on their goals.
Honesty and open disclosure of information is crucial to the process. Rather than rely on the inefficient (and costly) “discovery” process of traditional litigation, the participants agree to share all relevant information voluntarily. This keeps cost down and ensures that everyone is on equal footing in any negotiations.
The Participation Agreement also discusses specifics of the process itself. Most Collaborative divorces utilize a Team model – in addition to attorneys, the couple also selects a Financial Neutral, Child/Family Specialist, and Neutral Facilitator/Coach to provide support in their area of expertise (look for my future posts on the ins and outs of each professional’s role in the process). These individuals comprise the Team of professionals who work through the Collaborative practice process to support the couple in their decision-making and moving forward toward their goals following the divorce.
In a Collaborative divorce, agreements are usually reached through what we call “Joint Meetings” between various permutations of the team members. These meetings are opportunities for exchange of information with an eye toward reaching a (sometimes creative or out-of-the box) agreement that meets the goals of all involved.
Because both participants are agreeing to stay out of court and remove the threat of litigation from the divorce process, the Participation Agreement confirms that although a Joint Petition will be signed early on in the process, no documents will be filed with the court until a final agreement is reached (unless there are some extenuating circumstances and both participants agree that something should be filed with the court earlier).
The Participation Agreement does contain various provisions required by Minnesota law that satisfy the requirements of a legal document called a “Summons.” This is important because in Minnesota, a divorce proceeding is technically begun at the time of service of a Summons and Petition for Dissolution, or at the time of signing a Joint Petition.
In Minnesota, if an agreement is reached (through the Collaborative process or by other method), the divorce can be completed without ever going to Court.
The Participation Agreement also discusses in depth the procedure for withdrawal from the Collaborative process, and when that is warranted. Participants can be comfortable knowing that if something does happen that makes one or the other spouse decide to end the process, the other spouse will not be disadvantaged by that decision. The Participation Agreement also contains a “disqualification” provision, meaning that if the Collaborative process is ended before resolution of the divorce, none of the attorneys may continue to represent the participants. Additionally, information generated in the Collaborative process cannot be used by one party against the other if subsequent litigation occurs.
The Participation Agreement is an important component of a Collaborative Divorce. It is important to understand the provisions of the agreement, and know that they are there to define the values and procedure of the process, as well as protect participants if the process does not work to bring a case to completion.
The Participation Agreement solidifies the primary pillar of collaborative practice – that the participants agree to remove the threat of litigation as they work to reach an agreement in their divorce. It is amazing what this shift in thinking can achieve, and how it changes the dynamic of the entire divorce process and experience.
* You can also view this (and my other posts regarding Collaborative Law) at www.CollaborativeDivorceOptions.com