Sarah Gurney Attorney Sebastopol CAMedaiton for divorce, Sebastopol, Santa Rosa, CA
Mediation for confilct resolution














Principles and Guidelines for the Collaborative Process

I. INTRODUCTION
The essence of "Collaborative Process" is our shared belief that it is in the best interests of separating couples and their families to resolve their differences without resort to litigation. We seek to adopt a conflict resolution process that does not rely on a court imposed resolution.





   


Click here for Commonly Asked Questions About Collaboration

 

 

 

The process does rely, however, on an atmosphere of honesty, cooperation, integrity, civility and professionalism geared toward our future well being.

One of our major goals in adopting the Collaborative Process is to maximize the settlement options for our and our children's benefit and to minimize the negative economic, social and emotional consequences of protracted litigation. We commit ourselves to the Collaborative Process and agree to seek a better way to resolve our differences justly and equitably.

II. RESPONSIBILITIES OF PARTICIPANTS
We understand that our responsibilities as participants in the Collaborative Process are as follows:

To work towards settling the disputes without court intervention or threat of court intervention. Although we will be informed by our attorneys and consultants about the litigation process and the result it may attain, neither we nor our attorneys should use threats of going to court as a way of forcing settlement; To give complete, full, honest and open disclosure of all information, whether requested or not; To engage in vigorous good faith negotiations, presenting reasoned proposals in all disputes, and where our proposals differ, to use our best efforts to create options that meet our fundamental needs, compromising as necessary to reach settlement of all issues; and All attorneys, accountants, therapists, appraisers and other consultants will likewise be directed to work in a cooperative effort to resolve issues without resort to litigation or any other external decision making process, except as agreed upon.

III. LIMITATIONS OF COLLABORATIVE PROCESS In electing the Collaborative Process, we understand there is no guaranty of success.

We further understand we cannot eliminate concerns about the disharmony, distrust and irreconcilable differences which have led to the current conflict. While we all are intent on striving to reach a cooperative and open solution, success will ultimately depend upon our own commitment to making the process work.

It is consistent with the Collaborative Process that we assert our respective interests, and our respective attorneys will help each of us do so. Cooperation does not mean either of us must put the interests of the other ahead of the self (except where it is advantageous to do so.) It is also true that open and cooperative agreement-making insures the greatest likelihood of maximizing the possible outcome for each of us.

Our respective lawyers are committed to the principles of this agreement in the representation of his or her individual client. In making this commitment, the lawyers do not commit to representation of both clients. Each lawyer has an obligation to diligently represent his or her respective client and that client's individual interests and needs, and cannot be, or represent themselves to be, representing the legal interests of the other spouse. We understand that we cannot look to the lawyer representing our spouse to provide legal advice or information. This agreement does not create contractual rights by one spouse against the other spouse's attorney other than the duty to withdraw if the collaborative process terminates.

Each of us may continue to act in our own best interest, and not in the other spouse's interest, in areas which are outside the dispute, such as in changing estate plans and future financial and other activities so long as such actions do not violate the fiduciary duties owed to the other spouse until the settlement and final distribution of the property.

IV. PARTICIPATION WITH INTEGRITY

As participants in the Collaborative Process, we are concerned about protecting the privacy, respect and dignity of all involved, including clients, attorneys and consultants.

Each of us shall uphold a high standard of integrity, and specifically shall not take advantage of inconsistencies and others' miscalculations, but shall disclose them and seek to have them corrected.

V. INITIAL TASKS
We recognize that among the initial tasks to be accomplished are establishing temporary financial arrangements, including payments on debts and support, temporary use of property, and an agreement for payment of fees for both attorneys and other experts or consultants. We agree to make funds available for these purposes. VI. CHILDREN
In resolving issues about sharing the enjoyment of and responsibility for our minor children, we shall make every reasonable effort to reach solutions that promote the best interests of the children. We agree to act quickly to resolve all differences related to the children in a manner that will promote a caring, loving and involved relationship between the children and both parents.

We agree to insulate our children from involvement in our disputes.

VII. EXPERTS AND CONSULTANTS

In selecting outside help, we shall retain joint experts and consultants unless otherwise agreed. Selection of a joint expert or consultant shall not obligate us to accept the report or opinion of that expert. Each spouse may retain additional experts as desired to develop or evaluate information relevant to reaching agreement, however any such expert shall be directed to follow the spirit and direction of these Principles and Guidelines. The retention of additional experts shall be disclosed in advance.

VIII. ABUSE OF COLLABORATIVE PROCESS
We understand that collaborative counsel will withdraw from a case as soon as possible if he or she learns that his or her client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the Collaborative Process. Such actions may include, but are not limited to, the encumbrance or disposition of community, quasi-community or separate property without the written consent of the other spouse in violation of the Automatic Restraining Orders, failure to disclose the existence or the true nature of assets and/or obligations, failure to participate in the spirit of the Collaborative Process, ongoing emotional or physical abuse of the minor children, or withholding a secret plan or intention to flee the jurisdiction of the court with the children contrary to an agreement or existing court order.

We understand that each of our Collaborative Attorneys is permitted to disclose any of the following statements made to the attorney, which in the absence of this collaborative agreement, would be protected by the attorney-client privilege: a. Statements which indicate an intent to endanger the health or safety of the other, or of the children of either of us; b. Statements which indicate an intent to conceal or change the residence of a child of either of us without notice to the other; c. Statements which indicate an intent to commit irreparable economic damage to joint property or property of either of us.

IX. DISQUALIFICATION BY COURT INTERVENTION
We have signed the Stipulation and Order re: Collaborative Matter and have agreed to be bound by its specific terms and provisions. We understand that the attorneys' representation is limited to the Collaborative Process. Thus, while an attorney is an advisor, confidant, counselor, advocate and negotiator, he or she may not represent us in court, nor go with us to court in person, nor be named as the attorney on any document filed with the court after execution of this agreement and the Stipulation and Order re: Collaborative Matter, other than a mutual stipulation or agreement of the parties.

In the event either of us or an attorney deems it necessary or unavoidable that a filing with the court be done other than the filing of an agreement reached through the Collaborative Process, both attorneys will be disqualified to represent either of us. If either attorney is the attorney of record, he or she will immediately execute a Substitution of Attorney.

Except upon our mutual written agreement to the contrary, in the event the Collaborative Process terminates, all consultants will be disqualified as witnesses and their work product will be inadmissible as evidence in the case.

X. WITHDRAWAL OF ATTORNEY

If either attorney deems it appropriate to withdraw from the case for any reason, he or she agrees to do so immediately by filing a written Notice of Withdrawal with the court and serving the other party and his or her attorney. This may be done without terminating the status of the case as a Collaborative Case. The participant losing his or her attorney may continue in the Collaborative Process by retaining a new attorney who will agree in writing to be bound by the Stipulation and Order re Collaborative Matter and these Principles and Guidelines.

XI. ELECTION TO TERMINATE COLLABORATIVE PROCESS

If either of us decides that the Collaborative Process is no longer appropriate, and elects to terminate the status of the case as a Collaborative Matter, he/she agrees to do so immediately with written notice of his/her Termination Election filed with the court and served on the other spouse and his or her attorney.

The termination of the Collaborative Process will also occur automatically in the event one of us deems it necessary to proceed to court in an emergency to protect property, himself or herself. This process is also outlined in the Stipulation and Order re Collaborative Matter.

XII. SELECTION OF NEW ATTORNEY; ADDITIONAL RETAINER
Once the status of the case as a Collaborative Matter is terminated, each attorney agrees to aid his or her client in the selection of a new attorney, returning to his or her client any unexpended attorney fee retainer.

We understand that in retaining new attorneys in the event of the termination of the status of the case as a Collaborative Matter, each of us will likely incur an additional retainer for the new attorney.
We hereby pledge to comply with and to promote the spirit and written word of this document.

Both parties sign and date this pledge.

Sarah Glade Gurney . Family Law Attorney . 652 Petaluma Avenue, Suite I-1, Sebastopol, CA 95472 . T: 707.823.6500 F: 707.823.6501