Occasionally, my client will tell me that their spouse’s attorney is telling them that we can do their case collaboratively, but that they don’t want to sign a Collaborative Law Participation Agreement. This is a very bad idea and you should tell your spouse to proceed carefully with that lawyer. Whenever I hear this, it tells me one of two things about that lawyer:

  1. They don’t really understand the collaborative process, or
  2. They’re more concerned about keeping your spouse as a litigation client than they are about working with them collaboratively.

The participation agreement is important because it lays out the groundwork for the collaborative process and it covers several different issues. Primarily, it’s a pledge to stay out of the courtroom and it requires the attorneys to withdraw if you or your spouse decides to opt out of the collaborative process. This pledge gives everyone a strong incentive to work towards reaching a settlement and it creates a safe environment by removing the threat of going to court.

But, why would the attorneys need to withdraw if the collaborative process was terminated?

First of all, it’s required by law. Texas is the only state with a collaborative statute and it requires that an attorney withdraw from the case if the collaborative process is terminated.

In the collaborative process, you and your spouse exchange information freely and openly that you wouldn’t voluntarily give away in a litigated case. During litigation, you are trying to maintain an advantage and you only give the other side information that you absolutely have to.

The participation agreement creates a safe place for you to work together without fear of litigation.

If you allow an attorney to stay on the case after a collaborative case has been terminated, then they can take advantage of the information that was freely exchanged inside the collaborative process.

The participation agreement protects you in the rare event that the collaborative process is terminated. It prevents the opposing attorney from using any information that you freely disclosed during the collaborative case against you.

So, if you do your case "collaboratively," but you don’t sign an agreement, then you are leaving yourself exposed. I have a difficult time understanding why any attorney would think that this was a good idea.