Litigation has a reputation of being a competitive legal practice. In litigation disputes, there is a clear winner, the party who received their desired outcome, and a clear loser, the party who did not. Even the language in litigation fosters competition, with the use of terms such as “opposing counsel.” 

The introduction of collaborative law, however, is changing the narrative. While commonly used in family law, collaborative law is making its way into estate litigation. The use of collaborative law to resolve estate disputes was thoroughly explored in an article by Kim Gale titled “Collaborative Law to Resolve Estate Disputes.” The article describes collaborative law as a process where lawyers agree to resolve disputes with cooperative strategies. To ensure lawyers abide by their commitment, retainer agreements and participation agreements can include a statement that the parties will act in good faith, and the lawyers will cease to represent their clients if the settlement efforts fail. Collaborative law is most fitting for situations involving a continuing relationship that must be maintained. Since estate disputes often involve long-term familial relationships that clients may want to preserve, this dispute resolution technique may be very appropriate. 

The numerous benefits of collaborative law make it an appealing option for parties in an estate dispute. To start, collaborative law is timelier and thus more cost-effective than court, regardless of the nature of the dispute. Additionally, estate disputes tend to involve heavily personal and emotional matters. Clients may appreciate the privacy and confidentiality of collaborative law since decisions do not form any part of a public court record. Finally, parties can agree to suspend all limitation periods during the process to ensure any potential claims are not impacted. 

Various estate disputes may be resolved with collaborative law, such as will challenges or dependant support claims arising from a testator’s lack of planning. Having said that, collaborative law is not appropriate for situations of elder abuse or where funds are misappropriated by a party acting in a fiduciary capacity.

While collaborative law has just planted its roots in the world of estates, we look forward to watching this form of dispute resolution grow. Through cooperation and collaboration, the winner/loser outcome may shift to a winner/winner situation, where both parties walk away satisfied.

If you are interested in learning more about collaborative law in estate litigation, I will be speaking on a panel moderated by Kim Gale at the Elder Law Day on June 20, 2024, together with Kristine Anderson and Nicola Savin. For more information about the event, head to https://www.cbapd.org/details_en.aspx?id=on_on24eld01c

Hope to see you there – and have a great day!

Suzana and Tristan Montag, summer student at Hull & Hull LLP.