How does Collaborative Law differ from settlement in conventional litigation?
Many conventional family law matters settle “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage may have been done. Settlements reached under the threat of trial generally are molded by what the attorneys believe the court outcome will be. Under these conditions, which create considerable tension and anxiety, parties often are not able to consider innovative options that could be tailored to their specific needs. Because the Collaborative Law process is focused on respectful, cooperative problem-solving, the settlement process is very different. It is more creative and individualized, less stressful and more satisfying than what occurs in most conventional settlement negotiations. The Collaborative Process also can take less time and may be less costly than a traditional court-based process.
How does the Collaborative process ensure that all relevant documentation is provided so that both parties can make good decisions based on complete and verifiable information?
The Collaborative Agreement (and the proposed Collaborative Law Act) requires an attorney to withdraw if her/his client does not provide relevant information or is not participating in good faith. The Collaborative attorney also agrees to withdraw if her/his client alters or withholds documents, deliberately delays matters for economic or other gain, or fails to keep agreements made during the course of negotiations. Any party may also request that the other sign an affidavit under oath confirming that they have fully disclosed all information requested. The final written agreement includes a standard provision confirming that all information has been disclosed and that both parties have relied on those disclosures in entering into the agreement. The agreement may be set aside by a Court in the event of fraud by the other party.
How does Collaborative Law differ from mediation?
In mediation, there is one “neutral” person who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side becomes unreasonable or stubborn, lacks factual knowledge or negotiating skill, or is emotionally distraught, the mediation can become unbalanced. Unless the mediator finds a way to deal with the problem, the process can break down, or the resulting agreement may be unfair to one party. Even if the parties have attorneys, they might not be present at the negotiation and their advice may come too late to be helpful. Collaborative Law was designed to address these problems, while maintaining an absolute commitment to settlement. Each party has access to legal advice and skilled advocacy at all times during the process to assist them in achieving a settlement that meets their immediate and long-term needs. The attorneys work to keep the process positive and productive.
Will I have access to the information I need to make decisions?
Both parties sign a binding agreement—early, fully and voluntarily—to disclose all relevant and pertinent documents and information. The attorneys make sure that the parties have all of the information they need to make good decisions for themselves.
Why is Collaborative Law such an effective process?
Respect is the underpinning of the Collaborative Law Process and sets the stage for the parties to work together. Collaborative Law attorneys are trained to maintain productive and non-confrontational discussions in order to help the parties reach an agreement. Collaborative professionals use their collective problem-solving skills to help the parties achieve their own personal goals for settlement.
What is Collaborative Law?
Collaborative Law is an alternative dispute resolution process in which both parties retain separate, specially-trained attorneys whose only job is to help their clients settle their dispute without going to court. Parties agree to work together respectfully, honestly, and in good faith to try to find “win-win” solutions to their legitimate needs. The focus is on problem-solving, not adversarial proceedings. Rather than allowing a third-party (the courts) to make decisions about issues affecting their lives, the parties control the outcome. While engaged in the Collaborative Process, the parties and their attorneys do not go to court, or even threaten to do so. To ensure that the attorneys and parties are committed to the goal of settlement, all participants in a Collaborative case sign an agreement that requires the attorneys to withdraw from the case if one or both parties later decide to terminate the process and go to court. Collaborative attorneys cannot represent a Collaborative client in any litigation involving the other Collaborative party.
Can a Collaborative Law attorney go to court if the process terminates for any reason?
No. The Process is specifically designed in this way to ensure that the attorneys are invested with the parties in their commitment to creative decision-making without an underlying threat of litigation which diminishes the quality of the interest-based outcome.
What are the next steps?
Why not start by reviewing some of the Collaborative Professionals available to you on the Professional Directory: