Participation Agreement

An Absolutely Critical Part of the Process

You may have come across professionals, especially family lawyers, who have said to you that they will “handle your case amicably” or “try to resolve your dispute collaboratively.” However, unless there is a Participation Agreement in place among all involved, it is NOT a Collaborative Divorce.

The Participation Agreement formalizes commitment to the values and principles of the Collaborative Divorce and crucially, it sets the ground rules for conduct in the process. It also imposes consequences for breaking the rules. Perhaps most importantly, the Participation Agreement contains a “disqualification provision” for the Collaborative Lawyers.

The disqualification provision works as follows: should the Collaborative Divorce process end without success and should the parties find themselves in court, the Participation Agreement disqualifies the Collaborative Lawyers from acting for those parties in court. The effect of this is to force the Collaborative Lawyers and the parties to commit to the Collaborative Divorce process once they are engaged in it, right from the start: if the process ends without success, the Collaborative Lawyers are effectively fired and the parties have to start from scratch in a new process, with new lawyers. What better incentive for the parties to negotiate frankly and in good faith than to risk losing all their money and progress if no resolution if reached? And what better incentive for the Collaborative Lawyers to do a good job than the threat of losing their paying clients to another lawyer who will take over the case? The disqualification provision in the Participation Agreement means that everybody has their eggs in one basket in the Collaborative Divorce process, right from the beginning – there is no time for games.

Without the protections built into the Participation Agreement, the parties are simply engaged in “friendly litigation” that is no different than any other negotiation process – it can break down at any moment, there are no real rules of conduct, and there are few reasons not to play games and strategize. This is a dangerous and often wasteful practice which seriously reduces the potential for success. This type of negotiation can end up in court at a moment’s notice.

Remember: if there is no Participation Agreement, it is NOT a Collaborative Divorce, period.

Click to view a sample Participation Agreement.
Sample Participation Agreement

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