What is Collaborative Law?
Collaborative law is a method of alternative dispute resolution. The process operates under the principle that parties to a dispute settle their differences cooperatively and effectively in a non-adversarial setting (i.e., without litigation). Currently it is a method primarily used in Divorce and other Family-related matters, such as such as child custody and visitation (parenting and time-sharing), child support, relocation, property division, and spousal support; however, this is likely to change in the future as the practice spreads into other areas of law.
What happens in a Collaborative Family Law Case or Divorce?
The Key point to remember is that Collaborative Law is premised on resolving disputes without a court battle. In a Collaborative Divorce, for example, the parties and their individual attorneys sign a contract agreeing to participate in the Collaborative Process with a good-faith effort and to try their best to reach an amicable and fair settlement outside of court. Settlement on issues involving the marital relationship and/or children is reached through solution-oriented discussions between the parties and their lawyers (and the assistance of mutually agreed-on experts, such as mental health and financial professionals, if necessary). The parties and their lawyers pledge to maintain mutual respect and openness throughout the process. Information is shared openly between the parties and a common goal to resolution is always set as the highest priority.
What are the benefits to using the Collaborative Process for my Divorce or other Family Matter?
There are many benefits to using the Collaborative Process, but it boils down to three main advantages over the traditional approach: (1) the parties (not a judge) being in control of the process and making of final decisions regarding their family and property; (2) privacy of the process and related negotiations or discussions, as opposed to a dispute becoming public record when litigation is involved; and (3)decreased emotional and financial costs otherwise associated with a divorce or other family-related matter. Additionally, when children are involved, parents often find that using the Collaborative Process helps them establish a mutually beneficial 'business' relationship for their kids. With the assistance of their collaborative team, the process often helps them develop better communication skills with their soon to be ex-spouse. The ultimate result? Much better parenting by both Mom and Dad.
What happens if we cannot agree during the Collaborative Process?
According to the Participation Agreement (i.e., the Contract signed by all persons involved), both attorneys (and in most instances, any other persons who are part of the collaborative team, such as mental health or accounting professionals) MUST withdraw if settlement is not reached. The parties would then have to seek counsel from other attorneys in resolving their divorce or other family-related matters. Why? To create an incentive for cooperation, impress the seriousness on those involved, and prevent abuse of the process. Think of it like a 'one for all and all for one' thing. Note also that rarely does this situation arise. In most instances, the parties have invested time and effort into the process and have learned better communication skills through the assistance of their Collaborative team. They tend to see a disagreement on an issue as a bump on the road to resolution rather than a complete roadblock, eventually coming to a resolution that benefits the 'whole family'.
How do I know if the Collaborative Process is right for my situation?
It is a great option for those willing and able to set aside their emotional upsets for the benefit of the whole family, especially when children are involved. It is not, however, the right choice in instances where immediate court action is necessary (i.e. domestic violence, child abuse, etc). Your attorney should always make every effort to amicably resolve the many and often complex issues involved in your case out of court. Litigation or other adversarial procedures tend to be more expensive, emotionally stressful, and time-consuming for clients. For these reasons, itigation should be undertaken as a last resort and only when an amicable and fair settlement cannot be reached.