By Connie Kratovil-Lavelle, Esq.
Maryland attorneys who are struggling getting paying clients might increase their clientele by employing the “expedited collaborative process” to resolve clients’ disputes. The expedited process can be particularly attractive for clients who want to resolve their cases quickly and with less money. The potential for an increased number of frugal or lower-income clients in these inflationary times may be enticing for attorneys.
The expedited process is an abbreviated form of the traditional collaborative process, which is codified in twenty-three states, including Maryland. Unlike the traditional process, the expedited process does not use the more time- and money-consuming “team approach”.
I have reached successful agreements for clients in three to ten hours using the expedited process. When I developed it in a pro bono program at Prince George’s County Circuit Court in 2017, I achieved a nearly 100% success rate. Importantly, opposing counsel was on board with the expedited model, which was crucial to its success.
The collaborative process is an out-of-court settlement practice where represented parties agree to do all they can to settle out-of-court, provide full disclosure to one another, and agree, if they do not reach agreement, that the attorneys will not represent them in the ensuing litigation (poison pill provision).
It differs from true mediation because the parties are represented and the attorneys withdraw if there is no resolution. In the expeditive collaborative process, the poison pill provision incentivizes the clients to settle in order to avoid the time and cost of hiring a new lawyer.
The rules and laws that govern the expedited collaborative practice are the same as those that apply to the traditional collaborative practice — Maryland Uniform Collaborative Law Act, § 3-2001 Courts and Judicial Proceedings Article and Maryland Rules of Procedure 17- 501 through 17-507.
The process is expedited because the parties attempt to reach agreement in a very limited number of hours by having the attorneys help them do groundwork before the first collaborative settlement meeting. When they have that first meeting, they promptly define interests and limit discussion to focus on the information needed to generate options and ultimately reach agreement.
The basic elements of the expedited process are:
- Do any possible groundwork before the first collaborative meeting of the lawyers and parties, such as:
- Review and sign the retainer and Participation Agreement (agreement to use the collaborative process, as per Maryland law);
- Preliminarily review the ground rules with your client (rules regarding taking turns talking, trying to avoid interruption, being civil, etc.…);
- Gather documents from your client, e.g., financial documents;
- Consult and understand your client’s initial interests in an effort to identify and limit issues, identify areas of dispute;
- Share the above preliminary information with the other attorney;
- Discuss with your client whether there is an interest in bringing in other collaborative professionals to help inform the settlement discussions; note: bringing in other professionals will make the process a more traditional — and costly — team-based process
- Agree to a schedule of collaborative meetings in case more than one necessary;
- At the first meeting of lawyers and clients, review the ground rules and let clients know they can have a Temporary (or Pendente Lite) Agreement first, to “try it out” (for example to test a custody arrangement);
- Identify goals, interests and concerns;
- Gather further information;
- Brainstorm options, emphasizing that putting an option “on the board” does not mean it is the best idea or that clients agree to it;
- Evaluate options using a “Yes, No, Maybe” column on the board as a visual aid;
- Reach agreement; and,
- Draft the agreement for submission to the court.
The expedited process is an effective form of dispute resolution and an attractive alternative for those potential clients who might not otherwise hire an attorney because it’s too costly.
Connie Kratovil-Lavelle is the 2021-22 chair of the MSBA Alternative Dispute Resolution Section and founder of the Collaborative Law and Justice Center. She has trained hundreds of lawyers in the collaborative law process and welcomes your inquiries.