Collaborative law is a relatively new process focused on problem solving rather than fighting to “win.” Collaborative law centers on resolving contested issues outside the courtroom, thereby avoiding costly litigation. It encourages open, transparent, mature, and cooperative behavior between parties. While Collaborative Law does not work in every case, when used in the right circumstances, it can achieve a quick, fair settlement for a fraction of what a contested case would cost.
The Collaborative Law Process
Each party still has his or her own lawyer and the job of that lawyer is to assist the client in settling the contested issues outside of court. The parties each agree that they will provide full, honest and open disclosure of all information relevant to the proceedings. And, very importantly, they agree that their attorney’s representation is limited to the collaborative divorce process, and that neither of the attorneys can ever represent them in a court proceeding against the other spouse. This encourages both parties to remain committed to the process, even when dealing with the tougher issues, since this agreement eliminates the easy fallback position of letting a judge decide. Collaborative Law thereby creates an emphasis on finding workable solutions that are acceptable to both parties.
The process begins by each party signing a contractual agreement that will state that the parties agree to do the following:
- Give honest complete and open information and documents relating to the issues.
- Respect one another and avoid disparaging or criticizing each other.
- Refrain from involving the children to minimize any negative effects.
- Use outside experts where necessary and share the costs related to those experts. (i.e. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants).
- Try to come to an amicable solution to create a “win-win” for everyone.
- Avoid seeking or threatening court action to resolve any dispute.
If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.
Who is Involved in Collaborative Law?
In addition to the attorneys representing each of the parties, it is typical in Collaborative Law to assemble a team of professionals, to help the parties understand and resolve their disputes in many different contexts. Every case is different, but some of the types of professionals that could be hired include:
- Mental Health Counselors or Coaches
- Parenting Specialists
- Child Specialists
- Vocational Experts
- Financial Advisors
Mental Health Counselors are valuable to the Collaborative Law process as they can help parties focus on accomplishing the values and goals that they had in mind for the resolution to their case. Divorce can be a trying time for anyone, but couple that with the added pressure of being required to speak candidly about sensitive topics and it is understandable why so many parties like to have a Mental Health Counselor available.
A Parenting Specialist can be a real asset in cases where the couple getting divorced have children, and are going to be discussing how to plan for being a co-parent in a totally different way. With so many changes happening, and so many unknowns about their lives going forward, having a perspective from an expert, who has experience helping parents make these arrangements is a real benefit.
A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the breakup of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.
Vocational Experts can shed a lot of light on what can be a major challenge especially for spouses who previously stayed at home: How will I financially support myself and my family on my own? By providing career help and advice, as well as guidance on how to assess options for work in relation to the other agreed upon responsibilities for the family, Vocational Experts often can add value to the process.
Financial professionals (including Financial Advisors, Appraisers, and Accountants) may be used to help define values of assets. In the litigious court process often redundant financial reports and appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose neutral Financial Professionals, whom are not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
The Bottom Line on Collaborative Law: Most Cases Settle
More than 90% of all divorce cases are resolved without the need for a trial. The Collaborative Law process recognizes that emotional issues exist that cannot be adequately addressed by the court system. You may have heard stories of people spending thousands of dollars in legal fees to argue about visitation of pets or over furniture that has no sentimental or monetary value. These arguments are not really about the dog or furniture, but are reactions to the emotional distress these people are experiencing. The Collaborative Law process can address these problems using the team approach to find solutions. Collaborative Law may not work in every case, however, when used effectively, there is usually a much quicker settlement at a fraction of the normal cost associated with a contested divorce.