FAQS…..What is Collaborative Law?
Collaborative Law is a new method for resolving issues that develop when couples separate and divorce. Both clients retain their own specially-trained attorneys whose purpose is to represent them and help them settle issues without going to court or threatening to do so. In a Collaborative divorce, the settlement can be uniquely crafted to a couple’s or family’s specific needs.
Why should I consider collaborative law?
The Collaborative method is designed to ameliorate fear and anxiety from decision-making in a divorce. Collaborative practitioners recognize that the experience of ending a marriage or relationship is challenging. Collaborative professionals help create a more secure and comfortable environment. Each spouse or partner, in Collaborative practice, is ensured accurate information, sound legal advice, solid support in problem-solving and decision-making, as well as concrete assistance in laying the groundwork for a civilized co-parenting [when applicable]relationship after the divorce.
What’s the difference between Collaborative Practice and conventional divorce proceedings?
In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. A contested divorce proceeding is a civil lawsuit involving service of documents where parties seek everything a court might award and possibly more. Both parties, through their attorneys, wait for a series of court hearings to move the case forward over a period of months, or, in some cases, years. Negotiation, in conventional divorce, is usually done through the parties’ respective attorneys – a process that is often lengthy, bitter and filled with “win-lose” proposals. Typically, the proposals are not acceptable to both parties, so the issues must then be submitted to a judicial officer for decision. Unfortunately, in a conventional divorce, the parties often come to view each other as adversaries and their divorce may be a battleground. The resulting conflicts take an immense toll on the emotions of all family members.
Collaborative practice brings couples, their attorneys and other professionals together before either party is served with divorce papers. The court is not involved while the parties structure a mutually acceptable written resolution of all issues to submit to the court for the final decree. Collaborative practice is a non-adversarial approach. The parties and their attorneys pledge, in writing, not to go to court. The professional Collaborative commitment is to work together, in good faith, to help the parties negotiate to achieve a mutually acceptable settlement. Collaborative practice eases the emotional strains of a break-up and protects the well-being of children.
What’s the difference between Collaborative Practice and Mediation?
In mediation, an impartial mediator assists the negotiations of both parties and tries to help settle the case. However, the mediator cannot give either party advice or be an advocate for either side. If there are attorneys for each party, they may or may not be present at the mediation sessions. When there is an agreement, the mediator prepares a Memorandum of Understanding of the settlement terms for review and formalizing by both parties and their attorneys.
In Collaborative practice both attorneys are present during the negotiation process to keep settlement as the top priority. The attorneys, trained in mediation, work with their clients, and one another, to assure a balanced process that is positive and productive. When there is agreement, a document is drafted by the attorneys and reviewed and edited by both parties until everyone is satisfied.
Both Collaborative practice and mediation rely on a voluntary, free exchange of information and commitment to resolutions, respecting everyone’s shared goals. If mediation does not result in a settlement, either party can choose to use his/her counsel in litigation. In Collaborative practice, the attorneys and the parties sign a Participation Agreement stating Collaborative attorneys and other team members are disqualified from participating in litigation if the Collaborative process ends. The decision whether to mediate or utilize Collaborative practice can be facilitated by early Collaborative professional advice to focus on which process best suits a couple’s needs and situation.
Why is Collaborative Law such an effective settlement process?
Collaborative attorneys approach their professional obligations differently from traditional litigation attorneys. They view the other attorney not as an adversary but as a partner in a problem-solving process. Instead of seeking conquest for his/her client, the Collaborative attorney helps his/her client achieve a result which benefits ALL family members post-divorce. Collaborative attorneys are not hired guns, nor do they take advantage of others’ mistakes. They do not threaten, insult or focus on the negative. They encourage the highest good-faith problem-solving approach as a matter of integrity. Collaborative law offers the potential for creative problem-solving which occurs when all involved cooperate. Attorneys are natural problem solvers; however, in conventional litigation, they tend to pull in opposite directions. Collaborative attorneys succeed by finding solutions to their clients’ problems AND constructively addressing the other party’s concerns that are satisfactory to their client.
How does the Collaborative team prevent fighting?
Our Collaborative professionals are trained in mediation and Collaborative divorce. Collaborative coaches help clients deal with their emotions which could become obstacles to a respectful resolution of their marriage. They understand how to help clients express hopes and needs effectively. They ask questions that keep the conversation focused on mutually acceptable, workable outcomes. Collaborative professionals also demonstrate and model appropriate behavior in negotiating. Instead of confronting others in the room, they establish an atmosphere of mutual respect to ensure that everyone present sustains that respect throughout the process.
How do you get the information you need to proceed?
We determine the parties’ assets and income, using a business-like “trust but verify” approach. Rather than engaging in expensive legal “discovery” procedures, which take a great deal of attorney time, parties commit in the Participation Agreement to disclose information voluntarily and verify it with documentation, such as tax returns.
What happens if one side or the other is dishonest in some way, or misuses the process to take advantage of the other party?
Collaborative practice is designed to guard against dishonesty. If there are questions as to whether information being provided is accurate, Collaborative attorneys can request source documents from an employer or banking institution. Most couples realize that it is in their best interest to be open and allow the process to work for them.
What is “Collaborative Team Practice”?
Collaborative team practice is a newer way to help families make decisions related to separation or divorce. This multi-disciplinary approach has been utilized for some time in medicine and other professions and has gained popularity in the legal profession. In Collaborative team practice, a couple has access to a team of professionals, each specializing in a different field of expertise. Mental health practitioners serve as coaches to help couples navigate the emotional waters of divorce so they don’t present obstacles to resolution. They also function as child specialists to air the children’s needs and wishes and concerns, to deal with special needs, when applicable, and to help guide parents in the best direction to maintain continuity and stability for their children. A Collaborative financial specialist, such as a certified financial planner or certified divorce financial analyst, serves as a neutral to advise the couple on the impact of their financial decisions. All the professionals involved – attorneys, mental health practitioners and financial professions – have additional specialized training to help them understand a family’s specific needs during a stressful time.
When should I talk with a collaborative attorney?
Anyone considering divorce should have a consultation with a Collaborative attorney or coach as early as possible to review all options that may be available in his/her situation. The sooner this is accomplished, the more likely it is that the other spouse will agree to see settlement as the goal. Collaborative attorneys can guide you through that the Collaborative method or through alternatives, such as mediation. Whatever settlement approach you select, a Collaborative attorney can be a valuable ally. Collaborative attorney, coach and financial neutral time is spent in direct service, in personal and 4- or 5-way meetings with your spouse and his/her attorney.
How does the practice of collaborative law affect attorney’s fees?
In conventional representation, attorneys spend much of their time preparing documents which are only for the court’s use or to persuade a judge, producing expenses that don’t have direct value to the client. The Collaborative law process has advantages that can reduce attorney fees. The biggest savings result from avoiding the most costly aspects of litigation (i.e., hearing, retention of multiple expert witnesses, depositions and other formal discovery methods as well as the preparation for and attendance at a trial). In addition, the use of financial neutrals and mental health practitioners, experts in dealing with the financial and emotional aspects of divorce, at a lesser fee than the attorney, also results in a lower fee.
Is Collaborative Law the best choice for me?
If you want:
- a civilized resolution of issues
- a viable working relationship with your former spouse or partner in the future
- a cooperative co-parenting relationship with your former spouse or partner
- to protect your children from the harm associated with divorce litigation
- to take responsibility for handling conflict with integrity
- to maintain control and autonomous decision-making without handing over decisions about restructuring your financial and parenting arrangements to a stranger [judge or arbitrator]
- to avoid the unpredictable range of outcomes generally available in the public court system
- a more creative and individualized range of choices available to resolve issues
If you value the above-mentioned reasons then Collaborative law is the best choice for you!