Collaborative Law is a unique process used to resolve disputes in which both parties retain separate lawyers whose only job is to help the parties settle their disputes. It is a process of open communication between the parties and their respective lawyers. All of the participants agree to work together in a collaborative manner. They agree to be respectful, honest and to participate in good faith to try to reach an agreement, which meets the interests of both parties.
If the lawyers are not successful in helping the clients resolve the disputes, 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 parties to look at the dissolution process in a different way.
The collaborative law process primarily entails informal discussions and joint conferences for purposes of settling the issues. The parties 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 use of agreed upon neutral experts. The lawyers assist the clients in determining the information both parties need in order to reach a settlement. Each party’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. 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 the most satisfactory conclusion for the client. The parties are responsible for the outcome. Parties work with their lawyers to understand the legal consequences, both for themselves and the other party. The collaborative process is designed to achieve each party’s best possible outcome under the circumstances.
Whereas the traditional litigation model is based upon advocating one party’s position, the collaborative law model encourages understanding of the other party’s interest and concerns. Collaborative law offers the parties an opportunity to learn interest-based negotiating techniques that will facilitate their ability to cooperate with each other in the future. Given the opportunity to craft more creative property and custodial arrangements than the adversarial process allows, the parties can address methods of resolving disputes as they arise that will keep them out of the court system and minimize the possibility of future conflicts. When parties are committed to settlement and litigation is not an option, creativity and flexibility in problem-solving becomes the norm. If the parties feel that bringing in a third party would be helpful, they can utilize 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 bring in a family therapist to assist in dealing with the emotional issues that are interfering with communication, or hire a financial planner to assist in budgetary considerations for both parties. The possibilities are limited only by the imaginations of the parties 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 the lawyer’s offices, the parties can discuss issues of importance to them and their children 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 parties and their lawyers schedule everything themselves and thus avoid inconveniencing each other. Also, the parties are not under pressure to dispose of their case pursuant to a court’s docket guidelines. The collaborative law process gives parties the ability to move as quickly as the parties feel makes sense in their case, giving them time to emotionally deal with the divorce, or experiment with different periods of possession, or sell a home, or do whatever they feel needs to be done before they finalize their divorce.
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 expensive. If the concern is the amount of lawyer’s fees, collaborative law probably is less expensive although collaborative law is not bargain-basement law. Since the information gathering process in collaborative law is informal, there is no need to deal with the elaborate rules governing the discovery process in litigation (which often fails to produce the needed information). And since gathering information is one of the major activities in the litigation process, if the parties are unable to settle in collaborative law, very little of the time and money expended in the collaborative law information gathering process is wasted.
Collaborative law may not be the best choice for every client but it certainly should be considered if some of these statements are true:
1. The client wants a civilized and dignified resolution of the disputes.
2. The client would like to retain the possibility of friendship with the other party.
3. The client wants the best co-parenting relationship if the parties have children
4. The client wants to minimize or eliminate the damage often done to children in
5. The client and the other party have friends and extended family in common 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 court).
9. The client wants a process that is designed to achieve his/her best possible
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