Agreeing to Collaborate in Advance?

Abstract

Collaborative law is steadily gaining popularity and acceptance as a way to solve legal disputes without the intervention of the court system. Under collaborative law, the attorneys are litigation-only counsel, and counsel and the parties agree to forego traditional litigation processes, such as discovery and motion practice, in favor of collaboration, free exchange of information, and settlement. An unexplored question exists regarding whether parties can agree in advance to use collaborative law in the event of a future dispute between the parties, much in the way parties commonly agree to arbitrate or mediate in a pre-dispute agreement (PDA). This Article examines the enforceability of PDAs for arbitration, mediation, and negotiation to predict that a PDA for collaborative law would not be enforced by the courts or should be enforced under collaborative law policy.

Keywords: Collaborative Law; Pre-Dispute; Ethics; Dispute Resolution