Q: What are these new terms: Collaborative Law, Collaborative Practice, the Collaborative process, and Collaborative Divorce?
A1: Collaborative Practice has three key elements:
Collaborative Law describes the legal component of Collaborative Practice, made up of you and your attorneys. Collaborative Divorce usually includes other professionals, in addition to your attorneys, such as coaches, child specialists and financial specialists. Collaborative Practice can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law where continuing relationships exist after the conflict has been resolved.
Q: What is Collaborative Practice?
A: Collaborative Practice is an out-of-court alternative for divorcing couples that has been gaining momentum across North America since its creation in 1990. Separation and divorce can be one of the most stressful and expensive transitions in life. Separating couples suddenly find themselves dealing with a series of unfamiliar social, legal and financial issues triggered by separation.
The Collaborative Practice approach brings together specially trained legal, family and financial experts to assist parties to work toward a separation agreement that is realistic, workable, confidential and meets the interests of both spouses and their children. A collaborative divorce is usually much less expensive than a traditional divorce because it eliminates the need for time consuming, expensive court appearances.
At the start of the process all parties must sign a contract agreeing to adhere to the three guiding principles of collaborative practice, which are;
Collaborative Practice is a client-centered, solutions-oriented process. Both the parties and their lawyers make a commitment that negotiations will be principled, dignified and respectful. Issues are resolved without the threat of going to court, after a wide variety of options for settlement are explored. Often, the couple decides to make use of the expertise of other collaboratively-trained professionals. A neutral child specialist can provide insight into concerns of the children and help craft parenting plans. A neutral financial specialist can help gather and explain financial information and create future projections for settlement options. Family professionals help couples improve communication and manage conflict.
Q: What's the difference between Collaborative Practice and Mediation?
A1 In mediation, an impartial third party (the mediator) assists the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. When there's an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.
Collaborative Practice allows you both to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that's positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you both until everyone is satisfied.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone's shared goals. If mediation doesn't result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone's interests in resolution. It specifically states that the Collaborative attorneys and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.
A2: Mediation and collaborative practice are both voluntary, client-centered, private alternatives to resolving family law disputes without going to court. They both have the goal of identifying each party’s goals and interest, facilitating communication, and working cooperatively towards a mutually satisfying resolution. The difference between mediation and CP is the process in reaching those goals.
In mediation, the parties meet with a skilled professional whose role is to assist them in negotiating a legal settlement while remaining "neutral" to each party’s goals. This means the mediator does not advocate for or give legal advice to either party. Each party is encouraged to consult with an independent attorney to get legal advice and to review the final settlement agreement.
In a collaborative case, each party has an attorney and a coach. The attorney’s role is to advise and guide the client through the legal process, while the coach helps the client identify his or her goals and interests and supports the client in communicating effectively and managing emotions. The financial specialist and child specialist are “neutral” and do not advocate a position for either party; rather, they provide information that assists the parties in creating their settlement.
A3: A mediator is a neutral third party. Clients work with their lawyers in between mediation sessions if they wish to receive legal advice on a particular issue. The lawyers are usually not present during mediation. Once the mediation is completed, the lawyers finalize the wording of the agreement, and advise their clients whether they should sign it. Mediation is often appropriate for couples who are relatively low conflict and can negotiate without their lawyers present.
Collaborative Practice can work for clients experiencing low, medium or high conflict or trust issues, who want the support of their lawyers and other professionals during the negotiation sessions. Collaborative professionals provide advice and information to their clients every step of the way.
A4: In mediation, the parties choose one “neutral” professional to assist in resolving the issues. A mediator cannot give either party legal advice, and is prohibited from assisting either side in advocating his or her position. If one partner becomes unreasonable; or lacks negotiating skill; or is emotionally distraught, mediation can become unbalanced. Likewise, should one spouse have greater knowledge about the finances of the household, an unfair advantage may arise. Sometimes, the superior communication skills of one spouse leads to a larger focus on that person’s concerns. If there are attorneys for the parties, they are usually not present at the mediation table--and their legal advice may come long after outcomes have already been decided. When mediation reaches impasse, litigation usually follows.
Collaborative Practice is designed to provide balance; to even the playing field, so to speak; to assure legal representation at every step; and to afford outside expertise when warranted. Each side has an advocate dedicated to settlement. Even if one spouse lacks negotiating experience or financial understanding, the trained Collaborative Attorneys and Allied Professionals help everyone to reach a consensus. It is the job of the attorneys to work with their own client and with each other to make sure that information is shared fully and the process remains positive and productive.
Q: What is the difference between Collaborative Practice and traditional adversarial divorce?
A: A key difference between Collaborative Practice and traditional divorce is the pledge to reach an agreement without going to court. Spouses going through a conventional divorce often become adversarial, and can end up in court. The ensuing conflicts can take an immense toll on all the participants, especially the children.
In a collaborative divorce, the spouses and their lawyers pledge in writing not to go to court. The separating couple meet with their lawyers and any other professionals they choose to involve in a series of meetings to work out an agreement. While each case is different, several meetings may be all that is needed to come to an equitable agreement. The Collaborative approach allows separating couples to put child support and parenting agreements in place without having to wait months or years for a court ruling.
The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the break-up of a relationship, and protect the well-being of children. If either party decides to leave the collaborative process and go to court, then both collaborative lawyers are required to resign from the case. This agreement ensures that everyone works hard at achieving a settlement acceptable to both spouses.
Q: Why choose a collaborative divorce?
A: Quite simply, because spouses and children need a more constructive and compassionate approach to one of life’s most emotional events.
The end of a marriage or relationship is traumatic enough without the divorce process itself adding to the pain. While divorce will always remain a challenging life event, Collaborative Practice helps families make a more peaceful transition to a new life. Collaborative Practice works to strengthen relationships within the family, so that parties will be able to co-parent their children and maintain extended family networks after the divorce.
Couples can draw on the skills of a variety of collaboratively-trained professionals (lawyers, financial, family, and child specialists), to support the needs of their family. The goal is to work towards mutually-acceptable, constructive solutions to deal with parenting and financial issues, and help both spouses establish a solid foundation so they can move forward with their new lives.
Q: Is Collaborative Law the best choice for me?
A: Collaborative Law is a viable and preferred alternative to adversarial litigation for most families involved in separation or divorce. It is worth considering and implementing if these priorities are important to and genuinely desired by you and your spouse or partner:
Q: How is Collaborative Law different from “traditional” family law negotiations between divorce attorneys?
A: In Collaborative Law:
Collaborative Attorneys realize the vast differences between a settlement negotiated during the conventional litigation process and one that takes place in the context of an agreement not to—or even threaten to—go to court. Posturing, exaggeration, and secrecy often predominate when lawyers negotiate while having litigation as an option. It is not disputed that the most seasoned and trial-savvy expert witnesses usually affect the outcomes of divorce settlements and law suits. Conventional family law cases are resolved regularly “on the courthouse steps.” By that time, enormous funds have been spent and extensive emotional damage may have been inflicted upon everyone involved. Those settlements are reached under conditions of considerable tension and mounting pressure to avoid the fate of a judge. Moreover, conventional settlements are shaped largely by what the attorneys believe a court is likely to do.
Nothing could be more dissimilar from what occurs in a typical Collaborative Law case. The process is geared from the outset to make it possible for creative, respectful, private problem solving to occur. Clients report over and over again how their families were the center of the process, and their advocates—Collaborative Attorneys, Facilitators, Coaches, and Valuators—remained committed to helping the couples find their own mutual outcomes without the specter of what a court might determine.
Q: Why is Collaborative Law such an effective settlement process?
A: Collaborative Attorneys, Communication Coaches, Financial Professionals, and Child Specialists alike have a different state of mind about their roles in collaborative family law dispute resolution. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible “piece of the pie” for their own clients or achieving the most one-sided victory in the courts—no matter the human or economic cost—the Collaborative Team is dedicated to helping clients achieve long-range solutions for their post-divorce restructured families.
Unlike trial lawyers and forensic experts, Collaborative Professionals do not take advantage of mistakes inadvertently made by the other spouse or the other attorney. Likewise, they don’t threaten, insult, or dwell needlessly on negative past events involving anyone in the family. They expect and encourage the highest good faith problem solving behavior from their own clients and from themselves.
Collaborative Attorneys trust one another. While they still owe a primary allegiance and duty to their own clients within all mandates of professional responsibility, they recognize that a settlement impacts the short- and long-term welfare of the entire family. Resolution is not about winning and losing: it is about arriving at workable solutions for spouses and their children as they transition to living apart. Collaborative Practice allows the parties and attorneys to work with neutral mental health and financial colleagues to uncover and implement smooth, sensible, even-handed, and balanced decisions.
Collaborative Law offers a greater potential for creative problem solving than mediation, conventional negotiation, or litigation. Collaborative Law enables two trained lawyers to work with couples face-to-face and focus on the real issues in the family’s future. Trial attorneys may excel at advocacy in the courts, but they are dedicated to very different results based on the positions of their clients. No matter how capable lawyers may be, they simply cannot succeed as Collaborative Attorneys unless they constantly explore satisfactory mutual resolutions to the problems facing both parties. This family-centered approach is unique to Collaborative Practice. A dedication to settlement—arriving at long-lasting and comprehensive agreements—is the foundation for the Allied Professionals in the process, too
Q: What does "client-centered" mean?
A: A client-centered approach relies on the internal wisdom each client has in knowing what is in her or his best interest without relying on an outside authority such as an attorney, judge, or family court mediator to make decisions. When taking a client-centered approach, the attorney or mediator’s role is to help the client access that internal knowledge by identifying his or her true needs and interests. When clients assume responsibility for the outcome of their case, final settlements are more likely to be meaningful and withstand the test of time.
In the traditional adversarial system, attorneys, mediators, judges, and the law function in a way that reduces the ability of individual parties to make decisions. The result is often a resolution that does not meet the needs of either party.
Q: What is a Collaborative Team?
A: A Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and your Collaborative lawyers. In addition to your Collaborative lawyers, you can choose to include a neutral financial professional, divorce coaches, a child specialist or other specialists you and your spouse believe would be helpful. Your "Collaborative team" will guide and support you as problem-solvers, not as adversaries.
Q: What's the difference between Collaborative Practice and conventional divorce?
A: In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce you often come to view each other as adversaries, and your divorce may be a battleground. The resulting conflicts take an immense toll on emotions - especially the children's. Collaborative Practice is by definition a non-adversarial approach. Your lawyers pledge in writing not to go to court. They negotiate in good faith, and work together with you to achieve mutual settlement outside the courts. Collaborative Practice eases the emotional strains of a breakup, and protects the well-being of children.
Q: How does Collaborative Practice minimize the hostility of many divorces?
A: The guiding principle of Collaborative Practice is respect. This respectful tone encourages you to show compassion, understanding, and cooperation. Collaborative professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
Q: Are there any types of divorce cases not appropriate for Collaborative Practice?
A: Actually, there are some types of cases for which there is no good approach. If one or both of the parties have significant mental disabilities, severe personality disorders, or are prone to violence, they are not ideal candidates for the Collaborative Process. On the other hand, these types of cases are not served any better, and may be made worse, by trying to use more traditional litigation or mediation process.
If one of the parties is operating under a disadvantage, the mediation model may result in an unfair result. On the other hand, the same can be true of the litigation model which can end up being extremely expensive and time consuming. Therefore, while some types of cases are not ideal for the Collaborative Process, the Collaborative Process may still be the best alternative because additional help is available which allows the spouses to find a more effective solution. Care in structuring such a case and getting the professional help needed is key.
Q: How does Collaborative Practice actually work step by step?
A: When you decide on a Collaborative Practice divorce, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your lawyers. Additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final divorce agreement.
Q: Is Collaborative Practice a faster way to get a divorce?
A1 Your situation determines how quickly your divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving - instead of blame and grievances - there's an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there's no wait for the multiple court dates necessary with conventional divorce.
A2: Individual circumstances determine how quickly any divorce process proceeds. However, Collaborative Practice can be a more direct and efficient form of divorce. From the start, it focuses on problem-solving, not blaming or endlessly airing grievances. Full disclosure and open communication helps to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court dates that are often needed to dispose of the issues. Interim arrangements for children and support can be addressed within a few weeks instead of months.
Q: How does the cost of Collaborative Law compare with the expense of litigation?
A: Litigation is undeniably the most expensive way of resolving a domestic relations dispute. Motions, depositions, subpoenas, discovery, court appearances, law guardians, and forensic experts are all commonplace and costly aspects of divorce through the courts. Statistically, even the majority of litigated cases result in settlements: though usually after depleting substantial marital resources for all these adversarial tactics. Collaboration allows couples to manage their settlement budgets while working with Collaborative Attorneys, Neutral Financial Consultants, Child Specialists, and Communication Coaches whenever necessary, all being committed to cost-effective measures for the family.
Nearly all family law representation is undertaken by lawyers, therapists, and accountants at hourly rates for their professional services. Collaborative Practice enables clients to achieve their goals at combined costs far below the expenses for a prolonged, adversarial and virtually unpredictable law suit in the courts.
Because of the cooperative nature of Collaborative Law, much of the “homework” that occurs between four-way meetings is accomplished by the parties themselves. This delegation of responsibilities yields a very real savings to the spouses as they work toward a “global” settlement. Also, the entry of Allied Professionals into the process occurs when, and only when, the partners decide to retain other collaborative participants. In litigation, the retention of dueling experts may be compelled by a judge or necessitated by what the other partner’s counsel does: when there are minor children, real estate holdings, or even advanced academic degrees attained during the marriage.
Q: How does Collaborative Practice focus on the future?
A1 Divorce is both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family's goals for a smoother transition to the next stage of your lives.
A2: Divorce is both an ending and a beginning. Collaborative Practice helps each spouse anticipate his or her needs in moving forward, and include these in the discussions. When children are involved, Collaborative Practice makes their future a number one priority. Collaborative Practice helps couples achieve a dignified closure of their relationship, and make a smooth transition to the next stage of their lives.
