What is Collaborative Law?
Collaborative law is a non-litigation approach to problem solving that takes “going to court” off the table. It is especially effective in family law cases in which the parties need to maintain an ongoing relationship.
In a case being resolved through collaborative law, the parties and their respective lawyers
engage in four-way settlement meetings. They all work together to
establish agendas, set realistic deadlines for document exchanges, and
create a safe, open, and fair environment for resolving conflict.
The
process works because the attorneys are trained to listen to their
client’s needs and interests, while at the same time demonstrating
concern for the other party’s needs and interests. Although each
attorney represents his or her own client first and foremost, both
attorneys are focused on the big picture of resolving the problem to the
benefit of both clients and to the benefit of the children.
In
traditional litigation, each side prepares their case to persuade the
judge that only their view has merit. All actions are driven by that
goal. In a collaborative law case, facts and figures need not be
manipulated became the parties will not present their case to a judge.
Rather than “smoke and mirrors”, the collaborative law case process is
based on the parties’ understanding of each other’s point of view. This
does not mean that they will agree on everything, but it does facilitate
settlement, enhance trust, and reduce hostility.
How does Collaborative Law Differ from Mediation?
Collaborative law differs from mediation
in several important ways. First, the collaborative client can rely on
his or her lawyer every step of the way. In mediation, the attorneys are
often not allowed for part or all of the actual mediation, and parties
have the option of not having counsel. A mediator cannot represent
either party or and may not even be a lawyer. If not, the mediator
cannot give legal advice nor can he draft the documents or finalize the
case.
In collaborative law, all
negotiations take place during four-way meetings with both parties and
their counsel. Collaborative law attorneys guide settlement meetings,
gather documents, strategize with their clients, and manage the flow of
their cases.
One
of the biggest considerations is what happens when mediation breaks
down. Parties who have been represented by counsel during mediation may
keep their attorneys and move on to litigation. Their counsel may
prepare for trial with knowledge gained through mediation. By contrast,
if the collaborative-law process breaks down, collaborative attorneys
must withdraw and the parties must retain new counsel. Documents
gathered during the process
cannot be used by successor counsel in any litigation unless both
parties agree. Both parties are put at the disadvantage of “starting
over” which takes its toll financially and emotionally. As a result, there is built-in motivation to stick with the collaborative law process even when the going gets tough.
Who Should Use Collaborative Law?
Collaborative
law is the answer for any client interested in resolving their case
“outside of the system” in an amicable and respectful setting.
This
process also provides a safe yet empowering environment for those
clients who might be uncomfortable stating their position to the other
party. Having an attorney at your side to help gather and interpret
financial information, explain documents, or refer a client to an accountant, financial planner, therapist, or other expert is likely to give the confidence that clients need to participate fully in decision-making.
In
those cases when one partner gives the appearance of having more
influence, power, or information than the other partner, the
collaborative law process balances the power between the parties. Any
relationship with a history of even subtle emotional or verbal abuse
inhibits equal participation in mediation or other settlement
discussions and makes the collaborative process preferable.
What Role Do the Attorneys Play in the Collaborative Process?
Attorneys
have an ethical obligation to represent their clients vigorously and
completely. Although it may appear that your attorney is being
sympathetic to your partner’s point of view, remember that your attorney
is modeling respectful and open listening. Affirming what your partner
has said does not mean that your attorney agrees with your partner’s
position or that he or she is abandoning your position. Because all four
of you are trying to solve the same problem, your partner or your
partner’s attorney might just have an idea worth considering.
Remember
too that communications between you and your attorney are confidential
unless you instruct your attorney otherwise. However, because he goal of
collaborative law is frank, candid, and honest negotiations, you and
your attorney must carefully evaluate whether you can withhold
information while still upholding collaborative-law principles.
| Check out our local Collaborative Law Website at
www.aboutcollaborativelaw.com |
| Other sites or bookmarks to review: www.collaborativelaw.org |
How Do I Choose a Collaborative Law Attorney?
If
you choose collaborative law, you should hire an attorney trained in
the process. Although most attorneys are adept at negotiating
settlements, the techniques, protocols, and documents that make this
process work are vital to its success. Collaborative law is still
relatively new, but even if it’s your attorney’s first case, if they
have been trained in the process, it will still work. Look for an
attorney who inspires your confidence, has been trained in
collaborative-law protocols, is a good listener, is going to be a good
advocate for you, and is someone who understands your needs, interests
and goals.
Many
times, your partner or spouse may select a collaborative attorney
before you find one. Sometimes that attorney has had exceptionally good
experiences with certain colleagues and may recommend some attorneys. In
the collaborative law process, you can choose to interview an attorney
recommended by your partner’s attorney with more confidence in the
collaborative law cases because trained collaborative law attorneys are
trained to have the same goals and mindset in dealing with the case.
The Kinder, Gentler Divorce
Collaborative
law is the wave of the future. No other alternative process has caught
on so quickly or been adopted with such enthusiasm. Mediation
enthusiasts struggled for years to gain acceptance, while attorneys
resisted the movement even more than clients.
In
collaborative law, attorneys need not “give up” their clients to the
mediator. Instead, they form a partnership with their clients to reach a
non-litigated settlement.
The adversarial/trial process is designed to drive a wedge between whatever remains of the marital and parental
relationship. The opportunity for mutual trust and respect is shattered
by trial preparation, interim court appearances, and the trial itself.
The other party’s weaknesses, failures, misdeeds and mistakes are all
fair game for public display. After such a wrenching experience, a
healthy, respectful post-divorce partnership has little hope of
succeeding.
The
collaborative-law process is a breath of fresh air to attorneys and
clients alike. The goal of maintaining a respectful, ongoing
post-divorce relationship, especially but not exclusively between
parents, requires that everyone behave with restraint and respect. When
disputes arise between parties in a family context, collaborative law is
the best way to maintain the relationship, or to at least move on with your life with dignity and peace.
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