What is Collaborative Law?
Collaborative Law is an alternative dispute resolution process in which the parties retain separate attorneys whose primary function is to help them reach an agreed settlement. The parties and their attorneys collaborate in good faith, and commit to communicate respectfully and honestly to represent the legitimate needs of both parties. The parties agree not to litigate, nor threaten to do so, and if that should occur, the Collaborative Law process terminates and both attorneys are disqualified from any further involvement in the case. Attorneys hired for a Collaborative Law matter cannot continue to represent their respective clients in a litigated case.
What is the difference between Collaborative Law and mediation?
In mediation, there is one qualified neutral third party (typically an attorney) who assists the parties in negotiating a settlement of their case. The mediator does not represent either party to the dispute and cannot give either party legal advice, nor can the mediator advocate for either party’s position. If either party becomes unreasonable or stubborn, is emotionally distraught or unable to negotiate, the mediation process can be interrupted. A mediator may attempt to intervene to help the process resume, but if the mediator is unsuccessful, mediation can break down, or a negotiated agreement may be unbalanced. If the parties are represented by attorneys, their presence may actually contribute to the difficulties in the mediation, or their advice may come too late to be helpful.
Collaborative Law is an option to deal more effectively with potential problems for parties who may not be as prepared for mediation. While maintaining the same absolute commitment to settlement as the sole agenda, each party has quality legal advice and advocacy built in at all times during the process. Even if either party lacks negotiating skill, or is emotionally upset or angry, the process is equalized by the presence of the skilled advocates. It is the responsibility of the attorneys to encourage their clients to be reasonable to make sure that the process stays positive and productive.
What kind of information and documents are used in collaborative negotiations?
Both sides sign a binding agreement to disclose all documents and information that relate to the issues, fully and voluntarily. Deception or lack of cooperation are not permitted.
What happens if one party is dishonest, fails to cooperate or misuses the Collaborative Law process to take advantage of the other party?
While it is possible, it is more likely to occur in conventional litigation. What is different about Collaborative Law is that both parties and their attorneys enter into a written agreement which requires an attorney to withdraw if his/her client is being deceptive or fails to participate in good faith. For instance, if a party fails to provide financial information or documents, or is deliberately delaying the case for personal or economic gain, the attorneys have promised in advance to withdraw and will not continue to represent the client. Attorneys will also withdraw if a client fails to abide by agreements made during the course of negotiations, (e.g. failing to engage in joint parenting counseling).
The Collaborative Law process does not provide any “guarantees” that every asset or every bit of income will be disclosed. In the end, a dishonest person may successfully conceal money because it can be expensive and time consuming to investigate concealed assets. A basic rule is if a spouse is likely to lie on an income tax return, he/she is probably not a good candidate for a Collaborative Law divorce, because the necessary honesty would be lacking.
Is Collaborative Law the best choice?
Collaborative Law is not the best option for everyone. The best candidates for the collaborative process are parties who:
a. want a civilized, respectful resolution of the issues.
b. would like to keep open the possibility of a friendship with the other party.
c. will be co-parenting children together and want the best co-parenting relationship possible.
d. want to protect their children from the harm associated with protracted, contested litigation.
e. have a circle of friends and family in common.
f. have ethical or spiritual beliefs that place high value on personal responsibility and integrity.
g. value privacy in personal affairs.
h. value control and autonomous decision-making and do not want to hand over decisions about financial distribution and/or child-rearing arrangements to a stranger (i.e., a judge).
i. recognize the restricted range of outcomes generally available in the court system, and want a more creative and individualized range of choices available for resolving your issues (provided such are compliant with all rules and guidelines).
j. place as much or more value on the relationships that will exist in the restructured family situation versus a priority of obtaining the maximum possible amount of assets.
k. understand that conflict resolution with integrity involves achieving mutual, reasonable goals.
My attorney settles most of her cases. How is Collaborative Law different from what she does when she settles cases in conventional litigation?
There is a difference between a settlement that is negotiated during the conventional litigation process and a settlement that takes place in the context of the process governed by a written agreement to collaborate. Most conventional family law matters settle figuratively, if not literally, “on the courthouse steps”. By that time, both parties have incurred increased attorneys’ fees, and a great deal of emotional damage may have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both parties may experience “buyer’s remorse” afterwards. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the attorneys believe the judge in the case is likely to do.
The tension is significantly removed during the Collaborative Law process, which is designed from the beginning to make it possible for creative, respectful collective problem-solving to happen. It is faster, less costly, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.
Why is Collaborative Law such an effective settlement process?
Collaborative attorneys have a different approach to their practice. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible settlement for their own client, no matter the emotional or financial costs, collaborative attorneys are dedicated to helping their clients achieve the best results for their post-divorce restructured families. Collaborative attorneys do not act as “hired guns.” Nor do they take advantage of mistakes inadvertently made by the other side. Collaborative attorneys do not threaten, intimidate, or focus on the negative in their own client or the other party. They expect and encourage good-faith problem-solving behavior from their clients, and they maintain professional integrity during the collaborative representation.
Trust and communication are key to the collaborative process. While the attorneys still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process.
Why is it so important to formally sign an official Collaborative Law Agreement? Why can’t you work collaboratively with the other lawyer but still go to court if the process doesn’t work?
The effectiveness of Collaborative Law to spark creative conflict resolution seems to happen only when the attorneys and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the attorneys can still consider unilateral resort to the courts as a fall back option, their thought process does not become transformed; their creativity is actually stifled by the option of conventional litigation. Only when everyone believes that resolution can only be achieved through collaboration is the process truly effective. Collaborative Law is not just two attorneys who like each other, or who agree to “behave nicely.” It is a special technique that demands special talents and procedures in order to work as promised. By memorializing a formal agreement, the parties can be fully informed about the rules of the process and conform their expectations and behavior to the terms of the agreement.
