Collaborative Stipulation and Order


Collaborative Stipulation and Order PDF

In consideration of the mutual commitments, rights and obligations made herein, Petitioner, ***, and Respondent, ***, stipulate that the Court may make and enter an Order based on the following:
LAWYER REPRESENTATION
1. ***, Attorney at Law, has been separately retained by Petitioner to advise, counsel, and represent Petitioner in a Collaborative process during the course of this proceeding for Dissolution of Marriage; and, ***, Attorney at Law, has been separately retained by Respondent to advise, counsel, and represent Respondent in a Collaborative process during the course of this proceeding for Dissolution of Marriage. Although neither lawyer is the attorney of record for his or her respective client in this proceeding for Dissolution of Marriage, each lawyer agrees to be bound by the terms and provisions of this Stipulation and Order. Each lawyer named above, and any lawyer “in association” with that lawyer, is forever disqualified from appearing as attorney of record for any party in this proceeding for Dissolution of Marriage or in any other contested Family Law matter related to this proceeding for Dissolution of Marriage involving these parties, whether occurring before or after Judgment. This disqualification shall survive the term of this Stipulation and Order. A lawyer shall be deemed “in association” if, at any time during the pendency of this proceeding for Dissolution of Marriage, that lawyer is the employer or employee of, or co-employee with, or shares a relationship of independent contractor status with, any lawyer named above.
The parties acknowledge that in this Collaborative Practice matter each of them is being represented by his/her own Collaborative lawyer. Each party understands and acknowledges that she/he is relying upon her/his own lawyer’s advice and counsel in this Collaborative process, even though statements concerning the law or legal procedures may be made by either or both lawyers during the process. Although the lawyers in the Collaborative process work cooperatively to assist the parties to reach their goal of achieving a negotiated settlement, each is doing so independently on behalf of his/her own client and at no time does one party’s lawyer represent the other party. Each party understands that only his/her own lawyer is representing his/her particular interests in this Collaborative process, and that no legal duty or obligation arises in this Collaborative process between a party and the other party’s lawyer.
COLLABORATIVE PRACTICE MATTER
2. Each party and her/his respective lawyer shall treat this matter as a Collaborative Practice case. Each party acknowledges that she/he has read, understands, and has signed the document entitled Principles And Guidelines For Collaborative Practice and shall act in good faith to comply with the provisions set forth in that document.
3. For so long as this Stipulation and Order is in effect, the parties and lawyers shall devote all of their efforts toward achieving a negotiated settlement in an efficient and cooperative manner pursuant to the terms of this Stipulation. Neither party shall file, nor request her/his respective Collaborative lawyer to file on her/his behalf, any request for adversary intervention by the Court, including, but not limited to, a Request to Enter Default, Notice of Motion, Order to Show Cause or At-Issue Memorandum, except as otherwise specifically provided in Paragraph 13.
EXPERTS, SPECIALISTS, AND OTHER PROFESSIONALS
4. A. Testimony. Subject to and limited by the provisions of Sub-paragraph B, below, and Paragraph 8, any expert, professional, specialist, or any other person or firm that has been retained by one or both of the parties, or whose work product is used by a party or lawyer during the term of this Stipulation and Order and that has signed the Principles And Guidelines For Collaborative Practice, shall forever be disqualified from appearing as an expert witness on behalf of a party in any action or proceeding between the above-named parties to testify as to any matter related to that person’s or firm’s work product. Such persons or firms include, but are not limited to, lawyers, financial professionals, medical doctors, mental health professionals, personal/real property or business valuation experts, vocational consultants or any other person or firm qualified to give testimony as an expert witness. This disqualification shall survive the term of this Stipulation and Order.
B. Evidence. Except upon written agreement of the parties otherwise, all notes, work papers, summaries and reports prepared for or by such persons or firms described in Sub-paragraph A, above, shall be inadmissible as evidence in any action or proceeding involving the above-named parties. No such persons or firms may be called as a witness with regard to his, her or their work product except for the limited purpose of authenticating the document(s) mutually agreed upon by the parties to be admissible in evidence.
C. Scope. The participation of outside experts, professionals and specialists to assist the parties to achieve full settlement of their case or resolution of particular topics in their case is consistent with the Principles And Guidelines For Collaborative Practice and acceptable so long as such person is not requested or otherwise allowed to make decisions for the parties on any topics in their case.
DISCLOSURE AND DISCOVERY
5. As provided under the California Family Code, each party shall timely serve their respective Preliminary and Final Disclosure Declarations and each party shall voluntarily provide the other with any written authorizations requested which may reasonably be required to obtain information or documentation, or to prepare Qualified Domestic Relations Orders or other orders facilitating agreements reached. The parties acknowledge and understand that honesty and the full disclosure of all relevant information is an integral factor in the success of a Collaborative case, and each party shall therefore voluntarily provide such full disclosure.
6. All discovery requests shall be made informally. No motion to compel is available for any discovery request made during the term of this Stipulation and Order. Unless otherwise mutually agreed, responses to discovery requests shall be made in writing within 30 days of the request. For any discovery request requiring or resulting in an original written response from a party, said response shall be made under penalty of perjury or otherwise verified by the responding party.
MEDIATION
7. In the event the parties agree to refer any aspect of their case to Family Court Services or to a private mediator selected by the parties during the term of this Stipulation and Order, no action other than mediation shall occur, nor shall any time limits or procedural requirements described under any local Court Rule apply to this case.
STATEMENTS OF PARTIES AND LAWYERS
8. Excepting the Principles And Guidelines For Collaborative Practice, this Stipulation and Order, any contract for services with a Collaborative professional, statements and information contained in the Preliminary and Final Disclosure Declarations, responses to discovery requests under Paragraph 6, above, as provided in Paragraph 4, B, above, and as otherwise specifically set forth below, all communication, whether oral or in writing as defined in California Evidence Code section 250, between or by any party, lawyer, Collaborative professional, witness or other person or firm that has been retained by a party during the term of this Stipulation and Order and that has signed the Principles And Guidelines For Collaborative Practice, shall be deemed privileged, confidential, not subject to discovery, and inadmissible for any purpose in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which testimony can be compelled to be given, except as may be reasonably necessary to explain, enforce or correct any written agreement or agreement otherwise acknowledged in writing (which shall include mutually confirming e-mails), made by the parties in the course of their Collaborative process. No such communications shall be deemed a waiver of any privilege by a party. The privileges and protections created in this Stipulation and Order shall continue and remain in full force and effect after the term of this Stipulation, and may not be waived without the express written consent of both parties.
Other than as may be required by virtue of the exceptions stated above, neither of the parties to this Stipulation, nor anyone on his or her behalf, shall subpoena the records of Collaborative counsel, other Collaborative professionals, or any specialist, expert, other person or firm participating in the Collaborative process related to their case, or otherwise seek to obtain testimony from any of them in any arbitration, administrative adjudication, civil action or other noncriminal proceeding in which testimony can be compelled to be given. Any party who takes an action or proceeds contrary to the foregoing, or requests, authorizes or allows anyone on his or her behalf to do so, shall be liable for (1) all fees and costs incurred by the professional or other person involved to respond and (2) compensation to the professional at his or her usual billing rate and to any other person at a reasonable rate, for all time actually spent by the professional or other person in response or opposition to said action.
Notwithstanding the above, the following shall not be privileged and may be disclosed by a party: statements by a party which indicate an intent or disposition to endanger the health or safety of any other party, of the children of a party, or of any other immediate family member, or to commit irreparable economic damage to the property of a party; statements relevant to an issue of breach, by the lawyer or the client, of a duty arising out of the lawyer-client relationship.
Additionally, as a specific exception to the provisions for privilege and confidentiality set forth above, any agreements made by the parties in their Collaborative process may be memorialized in writing by their mutual consent, and if so memorialized and signed or initialed, shall be fully enforceable according to their terms, and, if necessary, may be disclosed to ensure compliance by a party and/or enforcement by a Court or appropriate governmental authority.
TERMINATION OF COLLABORATIVE STATUS
9. A party may unilaterally and without cause terminate the Collaborative status of this case, and thereby terminate the continuing application of this Stipulation and Order (except as otherwise provided in Paragraphs 1, 4 and 8) by serving and filing a Termination Election with a proof of service on all other parties and their lawyers, and providing copies to all other participants in the Collaborative process.
10. A Collaborative lawyer may withdraw from this case unilaterally by serving and filing a Notice of Withdrawal with a proof of service on all parties and their lawyers, and providing copies to all other participants in the Collaborative process. Such Notice of Withdrawal shall not constitute a Termination Election. The party whose lawyer withdraws may continue in the Collaborative process by retaining a new Collaborative lawyer who agrees in writing to be bound by this Stipulation and Order and the Principles and Guidelines for Collaborative Practice. Upon withdrawal by any Collaborative counsel, such counsel shall assist their client with the transfer of the client’s matter to successor Collaborative counsel unless the client declines such assistance.
11. Upon termination of the Collaborative process by a party, all Collaborative counsel will promptly assist their respective clients with the transfer of the client’s matter to successor counsel unless the client declines such assistance
12. No party, or anyone on his or her behalf, may serve a Request to Enter Default or an At-Issue Memorandum until the expiration of not less than fifteen (15) court days after service of a Termination Election under Paragraph 9, above, or a Notice of Withdrawal under Paragraph 10, above. With regard to a Request to Enter Default, the serving party shall give written notice to the receiving party of his or her intent to file not less than ten (10) days prior to filing the Request with the court. Except as provided in Paragraph 13, below, no hearing on any Notice of Motion or Order to Show Cause may be scheduled to occur prior to the expiration of forty-five (45) calendar days after service of a Termination Election.
13. Notwithstanding Paragraphs 3 and 12, above, a party may file an ex parte request for emergency relief, (for example, emergency screening, temporary restraining orders, or order shortening time), supported by a Declaration describing imminent action by any other party which involves: (a) a violation of any Standard Family Law Restraining Order, (b) a threat to the safety or welfare of a party, a child of a party, or of an immediate family member, or (c) imminent danger of irreparable economic damage to the property of any party. In such cases, all other parties shall be given not less than 5 court days advance notice of any hearing or other action unless the Court deems, for good cause, that a shorter notice period, or no notice at all, is appropriate. Any filing under this Paragraph shall constitute an election to terminate the Collaborative process under this Stipulation and Order and no further Notice or filing shall be required.
ATTORNEYS’ FEES
14. In the event the Collaborative process is terminated and the case proceeds to litigation, the Court may award attorney fees and impose sanctions pursuant to the California Code of Civil Procedure, the Family Code, or any other statute the Court deems appropriate, upon a proper showing that any party has: (a) used the Collaborative process in bad faith for the purpose of unilateral delay or to gain an advantage, (b) engaged in any concealment, misrepresentation or perpetuation of the same in any way that materially and adversely affects the rights of the other party, or (c) failed to act in good faith to provide discovery reasonably requested as set forth in Paragraph 6.
NOTICE
15. Any Notice or document required to be served pursuant to this Stipulation and Order may be served personally or by mail, and if by mail, shall be deemed served five (5) days from the date of the United States post mark if the addressee resides in the state of California [or ten (10) days if the addressee resides outside of the state of California], said Notice or document to be sent by first‑class U.S. mail, postage prepaid, addressed to each of the parties and their
lawyers at the following address: