What is Collaborative Law?
Collaborative Law is a form of dispute resolution that removes the “win at all costs” approach from divorce. In this process, parties and their attorneys contractually agree at the outset to settle their disputes without going to court. Spouses avoid lengthy and costly “discovery” by agreeing to disclose and exchange all information required to make sensible and fair decisions. The result: less emotionally destructive and more dignified divorces for more and more families. When divorcing spouses enter into the Collaborative Law process, they agree to:
- Communicate honestly
- Focus on important issues
- Protect the children
- Discuss divorce issues only in a conference setting
- Arrive at a final settlement out of court
As a non-adversarial process, collaborative law focuses on moving families from dispute to resolution efficiently, with as little financial and emotional damage as possible, while securing an agreement that addresses their common and individual interests. The three defining principles of Collaborative Law are:
- Clients and attorneys agree in advance that they will not take any contested issue to court;
- The process is “transparent” – much of the work is done in joint meetings with both clients and all team members present – and everyone agrees to an informal exchange of all relevant information; and
- Agreements are made through a process of “interest-based negotiation,” where the divorcing parties and their attorneys collaborate to find creative solutions that are “win-win” solutions to their issues by considering the needs, desires, concerns and fears important to each individual.
Collaborative Law: The Team Approach
Central to the concept of Collaborative Law is the “team approach.” This process involves the collaboration of professional personnel who work alongside and in conjunction with the clients and their attorneys to assist in the negotiation process. Involving professionals with expertise in specific areas provides invaluable insight and advice, and facilitates a cooperative working relationship. The team’s core membership is typically comprised of the divorcing parties, their respective attorneys, a financial planner, and a mental health professional.
The financial planner is a neutral voice who assists the parties in information gathering and better understanding any and all financial information relevant to the divorce. The financial planner also aids the parties in developing options to divide the marital estate. In addition, the financial planner can formulate projections of future financial plans for the parties, when needed. The mental health professional is also a neutral presence, who serves the team not by providing formal therapeutic sessions, but by opening and maintaining the lines of communication. The objective of the mental health professional is to help the parties control their emotions, disengage strong emotional, unproductive behaviors, and to keep counsel and parties “on track” and focused on the goal of resolving differences and reaching agreements. The mental health professional is also instrumental where children are involved, helping the parties design a parenting plan and parenting goals that are intended to accommodate the needs of both parents and, most important of all, to serve the best interests of the children.
Additional team members may be assembled based on the specific needs of the parties and the particular circumstances of the divorce. These may include professionals such as accountants; business and real estate appraisers; insurance consultants; corporate, tax, and estate-planning experts; child specialists; social workers; and other counselors and consultants. These individuals round out the collaborative “team” and often attend meetings, together with core team members, to assist with financial, business, tax, social, and communication issues.
Collaborative Law: Neutral Experts
Neutral experts help the parties arrive at an agreement using objective standards in an informal setting. Working together as a group, the team approach allows the parties themselves to direct the terms of settlement, surrounded by advisors to answer questions and provide sound advice. Ultimately, the parties reap the benefits of the collaborative team approach by making informed decisions about their future and reaching a mutually beneficial agreement as to the terms of divorce. As a lasting benefit, the collaborative team approach provides clients with experience they can use in future problem-solving, should matters of concern arise after the divorce is finalized.
Comparison between Litigation and a Collaborative Law Divorce
Collaborative Law Divorce
- Husbands and wives, assisted by trained attorneys, reach a settlement with minimal antagonism.
A structured and controlled setting encourages trust and objectivity in the negotiations.
- Legal costs can be contained.
- Parties can protect children’s feelings and interests.
- Since there are no public hearings, confidentiality is more easily maintained.
- Attorneys and spouses can craft more creative property and custodial arrangements.
- Negotiations occur in an environment and on a timetable agreed upon by the parties.
- Agreements can be reached more efficiently.
- Parties agree to settle at the outset, in a process conducive to helping them heal and move forward.
- A “win at all cost” legal system pits lawyer against lawyer, husband against wife.
- Continuing conflict aggravates existing painful emotions.
- Legal costs soar.
- As the conflict escalates, children suffer.
- Confidential financial and personal matters become public record and open to scrutiny.
- Judges divide property and establish custodial provisions using standards that may not meet families’ particular needs.
- Negotiations all too often take place in crowded courthouses under intense pressure.
- Proceedings may be prolonged.
- Most cases settle – but only after the damage has been done and substantial costs have been incurred.