Alternatives to Court: Collaborative Law

Collaborative law is a new form of alternative dispute resolution that is being used to resolve family-law cases. It is, quite simply, a collaboration between both of the parties in a divorce case, their attorneys, and whatever other professionals they may need to settle their differences without going to court. In order to participate in a collaborative-law setting, both parties and both of their attorneys must agree not to fight in court. If either party does go to court, then the collaborative process ends, both of the parties’ attorneys must resign, and each party has to find a new lawyer and start all over again. Both of the parties must also agree to make a full and fair disclosure of all of their assets, liabilities, income, and expenses, as well as any other pertinent information in their case. Both of the parties must be honest with each other, and both must agree to communicate respectfully with one another.

The goal of collaborative law is twofold — to reach an agreement and to stay out of court. To accomplish these goals, the parties can put together a team of professionals, including financial experts, real-estate appraisers, mental-health professionals, child-development experts, and anyone else with whom they may need to consult to obtain information and resolve whatever issues they have. Of course, anyone going through a divorce is also free to hire these types of professionals, even if they are not using the collaborative-law process to resolve their case. However, when people are fighting about their case in court, they each typically find and hire their own experts, who (not surprisingly) usually end up giving each party the opinion that supports that party’s view of the case. Instead of helping the parties understand their issues and settle their case, the experts usually end up adding fuel to the fire. If the parties are using collaborative law, on the other hand, they work together until they agree on a single expert, whom they hire together, and who will hopefully give them a fair and unbiased opinion that is within his or her area of expertise.

Once the parties have all of the information they need in their case, they meet together with their attorneys in a series of four-way settlement conferences, in which they try to resolve their issues and settle their case. Collaborative law works in much the same way mediation works, except that instead of both parties meeting with an independent mediator, they meet with each of their lawyers in four-way settlement conferences. During these conferences, everyone negotiates in much the same way as people negotiate in any other case, with one critical difference — no one threatens that if they don’t get their way, they’ll take the other side to court. Sure, if the parties truly can’t reach an agreement, they can still go to court and fight just like anyone else, but no one is motivated to do that. Since both attorneys will have to resign if the case goes to court, the attorneys are motivated to try to settle the case. Since both parties have agreed to try to use collaborative law in the first place, presumably, they are also motivated to stay out of court and try to work out their differences on their own. What’s more, since both parties know that they will have to hire new lawyers (which will take more time and cost more money) if they decide to start a fight, they are even more motivated to settle their case amicably.

Collaborative law is not appropriate for everyone. It won’t work if one person is consistently dishonest, won’t provide financial information, or really doesn’t want to settle the case. It won’t work if one party is afraid of the other, or if either party has been guilty of any type of domestic violence against the other or against the children. It won’t work if either of the lawyers is a shark who insists on fighting tooth and nail over every little issue in the case. In most other cases, however, collaborative law is a wonderful alternative to litigation. It focuses on settling issues rather than fighting to the death. It also works better for children, since they are not thrown into the middle of a lengthy court battle. It gives both sides a way to resolve their differences with dignity and integrity. It allows a divorcing couple to maintain the kind of civilized relationship that they will need in order to continue to deal with each other in the future. Overall, while collaborative law won’t work in every case, in those cases where it does work, it provides a marvelous alternative to litigating in court.

Karen A. Covy, J.D. is a divorce attorney and family-law mediator in Chicago, Illinois. She owns and operates Midwest Mediation as well as a successful family-law firm. This article is an excerpt from When Happily Ever After Ends (2006), used by permission of its publisher, Sphinx Publishing, an imprint of Sourcebooks, Inc.