Collaborative Law is an alternative dispute resolution model in which both parties retain separate, specially-trained lawyers whose only job is to help the parties 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 the legitimate needs of both of them. The focus is on problem-solving, not adversarial proceedings. In fact, rather than allowing a third-party to make decisions about issues affecting their lives, the parties control the outcome. While engaged in the collaborative process, the parties and their attorneys may not go to court, or even threaten to do so. To make sure that the lawyers and parties are committed to the goal of settlement, all participants in a Collaborative Law case sign an agreement requiring the lawyers to withdraw from the case if one or both parties later decide to terminate the process and go to court. No collaborative lawyer may represent a collaborative client in any litigation involving the other collaborative party.
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, or 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. If there are attorneys for the parties at all, they may 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 the same absolute commitment to settlement as the sole agenda. Each party has access to legal advice and skilled advocacy at all times during the process to assist in achieving a settlement that meets the immediate and long-term needs of that party. The lawyers work to make sure that the process stays positive and productive.
Most 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 in the shadow of trial generally are molded by what the lawyers believe the court outcome will be. Under these conditions, which create considerable tension and anxiety, parties often are not able to consider innovative options, 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 be quicker and less costly than a traditional court-based process.
Respect is the underpinning of the Collaborative Law process, and sets the stage for divorcing couples to work together. Additionally, Collaborative Law attorneys are trained to maintain productive and non-confrontational discussions in order to help the parties reach an agreement.
Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to using their collective problem-solving skills to help the clients achieve their own personal goals for settlement.
While it may not be right for every client (or every lawyer), Collaborative Law is worth considering if some or all of these are true for you:
- You want a civilized, respectful resolution of the issues.
- You would like to keep open the possibility of friendship with your partner in the future.
- You and your partner will be co-parenting children together, and you want the best possible co-parenting relationship.
- You want to protect your children from the harm associated with litigated dispute-resolution between parents.
- You and your partner have a circle of friends and extended family in common to whom you both want to remain connected.
- You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.
- You value control and autonomous decision-making and do not want to allow a stranger (i.e., a master or judge) to make decisions about restructuring your financial and/or parenting arrangements.
- You recognize the restricted range of outcomes and “rough justice” generally available in the court system and want a more creative, individualized range of available choices for resolving your issues.
- You place as much value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum amount of money for yourself.
- You understand that conflict resolution with integrity involves finding a way to achieve the reasonable goals of the other person as well as achieving your own goals.
Both parties sign a binding agreement to disclose all documents and information that relate to the issues, early and fully and voluntarily. The attorneys try to make sure that the parties have all of the information they need to make good decisions for themselves.
What happens if one side does not disclose information, or is dishonest in some way, or misuses the Collaborative Law process to take advantage of the other party?
This can happen, just as it can and does in conventional cases. In the Collaborative process, however, the collaborative agreement requires a lawyer to withdraw if his/her client is being less than fully honest, or is not participating in good faith. The collaborative lawyer also has agreed to withdraw if his/her client alters or withholds documents, deliberately delays matters for economic or other gain, or fails to keep agreements made during the course of negotiations.
The Collaborative Law process does not guarantee that every asset or source of income will be discovered. Conventional litigation, however, cannot assure you of this outcome. A dishonest person who works hard to conceal money can succeed, because the time and the expense involved in investigating concealed assets can be high, and the results uncertain. Ultimately, you are the best judge of your spouse’s forthrightness. If you have confidence in his or her basic honesty, then the collaborative process may be a good choice for you.
Why can’t a collaborative lawyer try to settle the case collaboratively, but still go to court if the process doesn’t work?
Collaborative Law’s special power to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If lawyers unilaterally can resort to the courts as a fallback option, their thought processes are not transformed, and their creativity is hampered by the availability of the Court and conventional “trial” mentality. Knowing that it is entirely up to them and their clients to “think their way” to a solution, or face a failed process in which the clients must secure other attorneys, helps in the orientation shift which distinguishes Collaborative Law from other mere settlement efforts.