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What is Collaborative Law?
How does Collaborative Law differ from other methods of dispute resolution ?
How is information gathered in Collaborative Law?
How do the clients and attorneys work together?
Does it work to have everyone together in the same room in the middle of a divorce?
Must an agreement be reached in Collaborative Law?
If the clients reach an agreement through Collaborative Law, what happens next?
What happens if a settlement cannot be reached?
Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?
Who should consider Collaborative Law?
What do I do if I want to use Collaborative Law?
What is Collaborative Law?
In a nutshell, Collaborative Divorce provides an affordable, expedient, multidisciplinary, non-court alternative to resolving the dissolution of your marriage by providing you and your spouse with the tools, professional support and guidance to reach mutual decisions which place your children first and accomplish your goals and priorities.
For a more full explanation, please refer to our "About Collaboration" page
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How does Collaborative Law differ from other methods of dispute resolution?
In the traditional litigation approach, both clients retain attorneys whose focus is to prepare a picture of "reality" which will result in the best decision for their client by a judge. Often, this method includes denigrating the other party or his/her perception of reality. Trial is often compared to a battle, in which one side "wins" and one side "loses". In some circumstances, litigation is the only option. For example, if the other party consistently hides information or is abusive, the formal procedures utilized in litigation may be the tools necessary to obtain an acceptable solution.
In mediation, a neutral professional assists the clients settle the dispute. Generally, the clients agree that all information will be shared and that they are seeking a "win-win" solution. The mediator does not represent either party and the clients do not go to court. Typically, the mediation does not include attorneys except in a consulting or reviewing capacity. Mediation can work well for clients who have the ability to communicate their needs directly to the other person and who are sophisticated enough to understand the financial and legal information being provided.
Collaborative Law combines the positive qualities of litigation and mediation in a non-court, non-adversarial process. Just as in litigation, each party has an independent attorney who will give them quality legal advice and will advocate for their needs. Drawing from mediation, the clients and attorneys commit to an open information gathering process and a commitment to settle without going to court.
The greatest distinctions between the processes lie in the cost and the results.
Litigation is the most expensive of the options financially and emotionally, now and in the future. As an adversarial process that emphasizes and focuses on the worst characteristics and nature of the clients, negative emotions and conflict escalate, attorneys fees and costs mount. Disputes between former spouses/partners, ie, the dirty laundry, are aired in public and hurt feelings solidify into long term animosity. A total stranger in a black robe makes all your decisions for you sometimes even leaving the "winners" feeling more like losers.
Mediation is potentially the least expensive of the options in the short term. Financially, the costs are usually relatively modest. And mediation helps minimize the emotional impacts for everyone, especially the kids. The clients are in control of the outcome so it is more likely they will like the agreement, understand it and honor it longer than those that may result from the stress and duress of litigation or the orders of the trial court.
Collaboration is potentially the best value of the three. While the investment, estimated at 1/3 the cost of litigating the same case in your market, is typically more than mediation [although you can pay as much as $6,000.00 per day for top national level mediators!], you get more. The role of the team of professionals is to educate, guide and coach the clients through the process. Besides having the benefit of an attorney advocate to consult and advise at all stages of the process, from the outset the team works to identify the "hot button" issues and diffuse them leading to more productive negotiations. The coaches work with the clients to reshape the way they communicate to allow them to deal with tough issues in a positive, proactive and productive manner so they can discuss and resolve issues between themselves now and in the future. The child specialist educates the clients regarding the particular concerns and circumstances pertinent to their family and gives a voice to the child[ren] involved in the middle of the process. The financial specialist does more than help the clients divide their assets. The financial specialist educates the clients on the most advantageous options for dividing their estate from a tax and estate planning perspective, and helps them set realistic attainable individual goals to secure their financial futures.
Thus equipped, most clients are able to make better and more meaningful agreements while being more generous with one another and are better equipped to meet any future challenges.
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How is information gathered in Collaborative Law?
The clients and attorneys agree from the beginning that they will produce all necessary information and documents voluntarily and in a timely fashion. Transparency is the rule. This helps build an atmosphere of trust and cooperation and allows clients to do without formal discovery and discovery disputes and expensive legal procedures to obtain information. Secreting documents, assets or orchestrating unnecessary delays are not permitted. If a party is not acting in good faith and plays "hides the ball", it is the duty of the collaborative attorney to work with the client to change his or her behavior. The collaborative attorney will withdraw if the behavior continues.
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How do the clients and attorneys work together?
After the initial meetings with their own attorneys, the typical process is to start the case with a 4-way conference - the clients and attorneys meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. The 4-way conferences continue to be utilized to exchange and clarify information and to brainstorm possible options for resolution. The attorneys work together and with their clients to plan each meeting. The clients and attorneys focus on educating everyone regarding the underlying information, each party's interests and possible solutions. Out of this process, a settlement which meets the approval of both clients can be fashioned.
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Does it work to have everyone together in the same room in the middle of a divorce?
The job of the collaborative attorneys is to "set the tone" for positive communication. Spouses in a divorce are often feeling vulnerable and emotional and can be less aware of how their pattern of communication can cause problems. The attorneys help each client to present his or her interests and needs in a positive manner that will be heard by the other spouse. Meeting together can help everyone to be "on the same page", which ultimately facilitates reaching an agreement. The focus of the meetings is on finding a solution, not attacking each other.
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Must an agreement be reached in Collaborative Law?
No. Both clients must agree to the solution. Neither party is forced to accept a solution that does not meet his or her interests and needs. Both clients understand that the goal is to fashion a solution that comes as close as possible to a "win-win" agreement, while recognizing that they won't receive everything on their "wish list."
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If the clients reach an agreement through Collaborative Law, what happens next?
The attorneys will draft the necessary legal documents and pleadings to memorialize the clients' agreement. This paperwork is then submitted to the court for approval. A court hearing is not required.
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What happens if a settlement cannot be reached?
If the clients cannot reach an agreement, the clients can explore other options for settlement - mediation, arbitration, neutral case evaluation. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial. The Collaborative attorney will transfer the information gathered and will assist the trial attorney in the transition.
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Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?
Collaborative Practice Attorneys are trained to approach cases with the underlying understanding that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being "what will happen if we go to court."
The transparency, cooperation and level of communication between clients and all team members that makes for 'success' in collaboration are antithetical to the legal posturing, legal maneuvering and vilification of the other party that characterizes the litigation process.
Honest appraisals of value or merit, offers of compromise or cooperation which open the door to settlement in non court alternatives like collaboration are viewed as weaknesses to be exploited in litigation. Court can often become a weapon or threat that derails rather than moves the clients to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the clients are "at the courthouse steps, after incurring substantial attorney's fees and depleting their emotional resources.
The agreement by both the clients and attorneys that the collaborative attorney will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to both clients. The tendency to "drift" to court as the default decision-making method is reduced.
In addition, attorneys who excel at settlement do not always have the same level of trial skills and vice versa. Clients who have a collaborative attorney for settlement and a new attorney for trial have had the best of both approaches.
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Who should consider Collaborative Law?
In my opinion, everyone who loves their children, values their dignity and desires to give and get respect should consider Collaborative Law. It doesn't hurt if you don't want to single handedly put your attorneys children through college at the expense of your own.
A few considerations:
Collaborative Law works best for clients who wish to settle without going to court and are willing to commit to a good faith effort to do so. In Collaborative Law, you maintain control over your decision making rather than letting a judge decide. You can also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial.)
Divorcing spouses often have continuing relationships with each other, as co-parents or through their circle of friends and relatives. Collaborative law will increase the possibility of maintaining a civil or even cordial relationship with your spouse after the divorce.
You should also consider Collaborative Law if you wish to dramatically reduce your legal fees. A divorce that goes through the entire legal process including a trial can cost from $20,000 and up. The formal legal procedures take much more attorney time (and your money) than the informal process used in Collaborative Law. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces your fees.
For a more full explanation along these lines, please refer to our "About Collaboration" page.
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What do I do if I want to use Collaborative Law?
Contact me through this website or any of the collaborative law attorneys listed on our local association website www.collaborativedivorcesolutions.com. You can discuss with the attorney the ways of approaching your spouse about collaborative law, which can include you discussing the idea with him or her, your attorney contacting your spouse, or your attorney discussing it with your spouse's attorney, if she or he has retained one.
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