Collaborative law is a unique private process used to resolve disputes. (Generally, these disputes are divorce actions, but it can also include modification actions dealing with Parent-Child issues). Typically, both clients retain separate lawyers whose only job is to help the clients settle their disputes. The process involves open communication between the clients and their respective lawyers. All participants agree to work together in a collaborative manner. They also agree to be respectful and honest and to participate in good faith to try to reach an agreement, which meets both clients’ interests.
If the case does not settle in the collaborative process, the lawyers must withdraw and cannot participate in court proceedings. This agreement that the lawyers will not go to court requires the lawyers and the clients to look at the resolution process in a different way–which is the hallmark of the “Private Divorce” or a Collaborative Divorce.
B. The Collaborative Process and Why it is Successful:
The collaborative process primarily entails informal discussions and joint meetings for the purpose of settling the issues. The clients and their lawyers commit to resolving differences justly and equitably without resort to court proceedings. The process utilizes informal discovery, such as the voluntary exchange of documents and the engagement of agreed upon neutral experts and other collaborative professionals. The lawyers assist the clients in determining the information both clients need in order to reach a settlement. Each client’s questions and concerns are respected and addressed in a reasonable and dignified atmosphere.
Collaborative law uses problem-solving negotiations that do not include adversarial techniques or tactics. Most collaborative lawyers are specially trained in interest-based negotiation, which focuses on ascertaining and meeting the clients’ expressed goals, needs, and desires. Although the lawyer still advocates for the client in the collaborative process, there is no posturing, no threatening, and no deception utilized to reach a satisfactory conclusion for the client. The clients are responsible for the outcome. They work with their lawyers to understand the legal consequences, both for themselves and the other client. The collaborative process is designed to achieve each client’s best possible outcome under the circumstances, an outcome acceptable to them both.
Whereas the traditional litigation model is based upon each lawyer advocating one client’s position, the collaborative law model encourages understanding of the other client’s interest and concerns. Collaborative law offers the clients an opportunity to learn interest-based negotiating techniques that will facilitate their ability to cooperate with each other in the future, which is especially important if the clients have children. Given the opportunity to craft more creative property and parental responsibility and parenting time arrangements than the adversarial process allows, the clients can choose methods of resolving disputes as they arise that will keep them out of the court system and minimize the possibility of future conflicts.
When clients are committed to settlement and litigation is not an option, creativity and flexibility in problem-solving becomes the norm. If the clients believe that bringing in a third party would be helpful, they can jointly engage the services of a mediator for a session, or bring in an arbitrator or case evaluator to break the logjam of a knotty issue that is blocking settlement. They may also elect to use the collaborative team model, which involves engaging a mental health professional (MHP) and a financial professional (FP) at the start of the case, both of whom are neutral. The MHP assists with the emotional issues that often interfere with communication and block settlement, and the FP assists with budgetary and other financial considerations for both parties. The lawyers, MHP and FP comprise the collaborative team, and the team’s goal is to assist the clients with achieving a maximized outcome under the circumstances. The possibilities that exist in the collaborative framework are limited only by the imaginations of the clients and their commitment to settlement.
One of the most attractive aspects of collaborative law for many clients is the fact that it is conducted in private, with the exception of the final “prove-up” of the divorce. In the privacy of one of the lawyer’s or other collaborative professional’s offices, the clients can discuss sensitive issues that they might prefer not to air in the public arena of the courtroom.
Another appealing aspect of collaborative law is its flexibility in scheduling. In litigation, the scheduling of hearings and depositions frequently is done with no consideration for the parties’ schedules. In collaborative law, the clients and their lawyers schedule everything themselves and thus avoid inconveniencing each other. Also, the clients are not under pressure to dispose of their case according to a court’s docket guidelines. The collaborative law process gives clients the ability to move as quickly as the clients feel makes sense in their case, giving them time to emotionally deal with the divorce, experiment with different parenting time schedules, sell a home, or do whatever else needs to be done before they finalize their divorce.
C. Costs Involved:
Some clients may ask if the collaborative law process costs less than litigation. There are two ways to look at “cost.” If the client is concerned about costs such as a damaged relationship with the other party, trauma to the children, loss of privacy, etc., the collaborative process is definitely less costly. If the concern is the amount of professional fees, collaborative law probably is less expensive than litigation, although collaborative law is not bargain-basement law. In fact, collaborative law has proven to be a value-added process, especially when the clients use the team model. Some clients also express concerns over duplicating costs if the case terminates. Information gathering in collaborative law is informal, thus, there is no need to deal with the elaborate rules governing the discovery process in litigation, which often fails to produce the needed information in any event. Since gathering information is one of the major activities in the litigation process, if the clients are unable to settle in collaborative law, very little of the time and money expended in the collaborative law information gathering process is wasted.
D. Self Test:
Collaborative law works for the majority of clients; however, it may not be right for everyone. It certainly should be considered if some of these statements are true:
1. The client wants a civilized and dignified resolution of the dispute.
2. The client would like to retain the possibility of friendship with the other party.
3. The client wants the best co-parenting relationship.
4. The client wants to minimize or eliminate the damage the hostility and conflict of litigation often causes children.
5. The client and the other party have friends and extended family with whom they both wish to remain connected.
6. The client recognizes the limited range of outcomes generally available in the court system and wants a more creative and individualized range of choices.
7. The client values honesty and integrity, dignity, privacy and discretion.
8. The client would like to control the proceedings rather than leaving the outcome in the hands of a third party (the judge or jury).
9. The client wants a process that is designed to achieve his/her best possible outcome under the circumstances.
10. The client understands that resolving conflicts with dignity involves meeting not only the client’s goals but finding ways to meet the reasonable goals of the other party.
E. Comparisons of Litigation and Collaborative Law Process:
1. Parties in disputes often feel intimidated, powerless, and not in control. A common litigation tactic is to make the other side so uncomfortable they are coerced into settling.
2. Focused on blame.
3. Process and solutions are defined by legal dictates.
4. Things often happen that you do not want to happen.
5. Adversarial atmosphere – use of hostile cross-examination, depositions, formal discovery.
7. Inconvenient scheduling – court dictates the parties’ schedules.
8. Secretive – play “hide the ball,” mislead and deceive.
9. Lawyers engage in positional bargaining.
10. Time and money spent getting ready for trial that most likely will never occur. Little time spent on settlement.
11. Litigation expenses can become uncontrollable.
12. Cannot just “try” litigation.
13. Destroys family unity and integrity.
Collaborative Law Process
1. Seeks to help both parties feel safe, respected, in control of their lives, and as comfortable as possible while collaborating towards resolution.
2. Focused on solutions.
3. Adaptable process and creative solutions not confined to the law model.
4. Nothing happens unless you agree to it.
5. Safe atmosphere – designed to be civil, dignified, respectful.
6. Private and confidential.
7. Schedules for meetings are by agreement of all participants.
8. Transparent Process – same information available to both parties.
9. Parties develop options for resolution in joint meetings.
10. All time and money is spent on settlement efforts – fewer wasted resources.
11. All case-related expenses are discussed. Parties’ resources are efficiently used.
12. Can try the Collaborative Law process – if it does not work, you can litigate.
13. Preserves the integrity of the restructured family.