What is the impact of a participation agreement on collaborative litigation?

The participation agreement is an important foundational document in the collaborative process. It operates much like a mediation agreement or an arbitration agreement to set the boundaries and terms of the process. An executed participation agreement is necessary to ensure compliance with one of the key features of collaborative process: the commitment of collaborative counsel or any member of his/her firm not to litigate. As reflected in cases such as Judson v. Mitchele, a party’s right to his or her choice of lawyer should only be interfered with in the clearest of cases. It is therefore important for collaborative lawyers and their clients to be clear as to the process that they are embarking upon and that process needs to be clearly documented.