Collaboration vs Litigation

  COLLABORATIVE LITIGATION
  The parties control the process and make final decisions The Judge controls the process and makes the final decisions
Degree of Adversity The parties agree to negotiate in good faith and to be open, honest and respectful. The Court process is based on the adversarial system.
Cost Costs are manageable, usually less expensive than litigation. Use of joint experts who report verbally at meetings rather than expensive written reports is a significant cost saving. Costs are unpredictable and can escalate rapidly. Appeal processes can consume significant costs. Each party frequently has their own expert and the cost of reports is significant.
Timetable The parties create the timetable. The Court Rules and/or the Judge sets the timetable. There are often delays due to overburdened Court system. Frequently even after a trial there can be significant delays in Judgments being handed down. If a party appeals that adds to the delay.
Use of Outside Experts Jointly retained specialists provided information and guidance to help parties develop informed and mutually beneficial solutions. Specialists can attend meetings and the parties have the opportunity to discuss findings. Separate experts are hired to support a litigants position.  Sometimes the Court will Order a single expert however due to the distrust between the parties it is frequently the case that each party will then secure their own separate expert to comment upon the findings of the joint expert.
Involvement of Lawyers Collaborative Lawyers work toward a mutually created settlement. 100% of their efforts are directed toward finding a solution. Lawyers fight to win on behalf of their client. In many cases someone wins at the expense of the other party (there is frequently fallout or “payback” as a result), but sometimes neither party is happy with the outcome.
Privacy The process, conversations and negotiations are private. The dispute becomes a matter of public record and sometimes media attention.
Facilitation of Communication A team of collaborative specialists educate and assist the parties on how to efficiently communicate with each other. Appropriate and effective communication is modelled. No process is designed to facilitate communication. Frequently such damage is done by the process itself that communication post litigation is impossible.
Voluntary vs. Mandatory Voluntary Mandatory if no agreement
Lines of Communication The parties communicate directly with the assistance of members of their team The parties communication and negotiation is entirely through their Lawyers. Delay and expense are inevitable.
Court Involvement Outside Court. Court-based
Choice of Solutions The parties can choose solutions that suit their needs. Judges are limited in their choice of solutions by outcomes that are governed by legislation and precedent.