Collaborative Law Practice FAQs
What is Collaborative Divorce?
In a Collaborative Divorce each party has an attorney, but they agree not to handle their disagreements in court. Not all attorneys are qualified to represent you in a collaborative divorce. This process requires that both spouses work with an individualized team of highly-skilled divorce professionals who are specially-trained in the Collaborative Divorce process -- and who will help them reach a full and final resolution in their divorce or legal separation case.
Each party selects their own individual Collaborative Attorney to advise them as to the legal aspects of their case. Each party will also select their own non-legal advocate assisting them – as well as the rest of the Collaborative Team – in working through the emotional (i.e., non-legal) aspects of divorce that can so often derail the possibility of settlement within the adversarial court setting.
In addition to each spouse's individual advocates, each couple's collaborative "team" will include a neutral Financial Specialist that is specifically chosen by the parties' and their attorneys to help streamline the process of sorting out the financial issues. For those couples with children, a second "neutral" Child Specialist is brought on board to assist the parties in reaching agreements surrounding how they will share parenting responsibilities now that they are living separately.
The Collaborative process itself typically includes a variety of meetings at which the parties and professionals meet to discuss the issues, make any needed interim arrangements, and plan for information gathering. Conferences are set to exchange and clarify information and to brainstorm possible options for resolution of conflicts. All team members focus on clarifying each party's needs and interests and developing solutions based on the free exchange of information between parties. Negotiations are based on finding options that best serve the options of the entire family and create the possibility for a positive continuing relationship.
In a collaborative divorce, each spouse's individual advocates work together with the team "neutrals" - to resolve issues, and bring the divorce process to a positive outcome for everyone.
Is Collaborative Practice limited to Divorce cases?
Absolutely not! All manner of family law and child custody matters may be resolved through collaborative practice. Although it is commonly used for divorce proceedings, it is also recommended in cases where child custody or parenting issues are disputed. This process allows parents to stay out of court, maintain confidentiality, achieve parenting orders tailored to the unique needs of their family, work with a team of professionals who treat you with dignity and respect, and develop a working co-parenting relationship with the other parent based on mutual respect and shared goals.
How does Collaborative Divorce differ from a conventional "litigated" divorce?
Collaborative Divorce differs from conventional divorce in that instead of going to court to work against one another to get their individual needs met, separating spouses agree instead to use an interdisciplinary "team" model, working together -- outside of the court -- toward a mutually beneficial agreement that protects the needs and interests of the entire family unit, including the children. In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a resolution achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children.
Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. The parties expressly agree that cumbersome civil litigation (i.e., "court") tactics will not be used by either party. In its place will be a process based on a structured, but open dialogue between the parties and the professionals – all of which is aimed at getting to "the heart" of the issues that exist, so that solutions can be identified and implemented. The parities negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
What is the difference between Collaborative Practice and Mediation?
In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice, and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.
Collaborative Law was designed to allow clients to have their lawyers with them throughout the negotiation process, and gaining the benefit of individual advice, while maintaining the same commitment to settlement out of court. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by both the lawyers and the parties, until both parties are satisfied.
Can a party quit the collaborative process and go to court?
Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties` shared goals. If mediation does not result in a settlement, the parties may choose to use their counsel in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone's interests in the direction of resolution, and specifically provides that the collaborative attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached. Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.
How does Collaborative Practice actually work?
- Each party hires Collaborative Practice lawyers to represent them in the process.
- All of the parties agree in writing not to go to court.
- Spouses meet both privately with their lawyers and in face-to-face discussions to identify settlement goals and discuss options.
- Additional experts, such as divorce coaches and child and financial specialists, may join the process, or in many cases, be the first professional that a client sees. These sessions focus on producing an honest exchange of information and expression of needs and expectations - with the goal of an expeditious and fair settlement.
- The well-being of any children is especially addressed at each stage.
- Finally, the parties and counsel meet and confer to negotiate a final resolution of all issues, typically over several meetings, and once all pertinent information is exchanged.
- Mutual problem-solving by all the parties leads to the final divorce agreement, preparation of the necessary forms and documents, and filing of a judgment with the court.
What does Collaborative Practice do to minimize the hostility often present in divorce?
Collaborative Practice is guided by a very important principle: i.e, respect. By setting a respectful tone, and prioritizing the dignity of all involved, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
Is Collaborative Practice a faster way to reach an acceptable settlement?
Individual circumstances determine how quickly any dispute resolution process proceeds. However, Collaborative Practice can be a more direct and efficient form of resolution. From the start, it focuses on problem solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court appearances that may be necessary with conventional litigation.
What is the "Interdisciplinary Team Model"?
The interdisciplinary collaborative team model is a multi-disciplinary team approach to dispute resolution, which includes attorneys, coaches, a financial specialist, and when there are minor children, a child specialist working interactively as co-equals. Professionals on the team all subscribe to the same core values and shared beliefs, consistent with the IACP ethical guidelines that none of the team members will be involved in any court process concerning a shared case, and all members will withdraw from the case if it becomes a court process.
Team members are selected by the clients at the beginning of the case. The team is ideally made up of the clients; two collaborative lawyers, one for each partner; two divorce coaches, one for each partner; a child specialist who represents the voice of the child(ren); and one neutral financial specialist. A key element of the team approach is that the couple can enter into the collaborative process through any "door"; a couple, for example, might first contact a collaborative divorce coach, a collaborative lawyer or a collaborative financial specialist to begin the process. Regardless of which "door" they enter, the couple will be guided to select their team. Many teams share a common participation agreement which the clients sign first with their attorneys.
The divorcing couple works with their divorce coaches to enhance their communication skills as well as learn self-management and negotiation skills to help them during their divorce process. When they first meet individually with their divorce coaches, they work on acquiring the skills and knowledge they will need to have successful four-way meetings with their coaches as well as with their collaborative lawyers. During these meetings the couple learns how to communicate their concerns effectively and discuss options for their parenting plan. These four-way meetings are not only crucial in helping the couple to work with the rest of the team during the divorce process, but can assist them in improving their co-parenting relationship as well.
During this process, the child specialist talks with the parents and meets with the child to assess the child`s needs and concerns. The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process. Unlike a custody evaluator, the child specialist does not make specific recommendations, but works with the coaches and the parents in making informed decisions to help their child. This information that the child specialist provides is essential not only for parents, but for the entire team as well. With the information received from the child specialist, the couple, with the help of their coaches, will craft the parenting plan which is then incorporated into their final divorce document.
The neutral financial specialist meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information. The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options. Often this information is presented in a five-way meeting with the financial specialist, the two collaborative lawyers, and the couple where the options are discussed. Then the couple, along with their attorneys, crafts their financial settlement.
The premise of the "collaborative team" is that parties and their chosen professionals act as a problem-solving team rather than as adversaries. This integrated model provides the couple with the services they need from the professional most qualified to address the complex issues of divorce. Working together, these collaborative professionals help divorcing couples achieve an outcome that would not be possible without this cooperative team involvement. The team approach can also be adapted to disputes other than divorces and termination of domestic partnerships.
The Members of the Typical Collaborative Divorce Team:
Collaborative Divorce Attorneys
Though Collaborative Practice seeks to avoid going to court, legal agreements are being crafted. Each party has a personal attorney with whom they will meet separately and confidentially to discuss rights and obligations. The attorneys advise on relevant legal matters from child custody and support to financial settlements including property distribution. Attorneys participate in four-way meetings with the parties and are trained to keep the meetings safe, constructive and a comfortable place for parties to create acceptable solutions to the challenges they are facing. The Family Law Attorneys will prepare all legal documents that must be filed with the court and incorporate all client agreements into the final settlement.
The mental health professionals on the Collaborative team assist as coaches and child specialists. Their role is distinct from therapy, in that the relationship is focused on achieving the immediate goal of agreement rather than determining the core causes of behavior. The coaches help their clients learn self-management skills, including anger and stress management, and the communication skills so vital to the Collaborative process.
The Divorce Coach meets with their individual clients to identify and prioritize the concerns of each person, offering support and coaching while helping them develop confidence in their own abilities. Clients and coaches meet in four-way sessions to practice the skills they have learned in individual sessions, transforming ineffective communication into effective negotiation. One of the primary goals of the coach is to help parents develop an effective co-parenting relationship evolving from their mutual efforts. Coaches also provide a conflict resolution model that each party can use to continue development of their co-parenting relationship into the future.
Since the divorce settlement will greatly affect the financial well-being of all parties for many years to come, it is critical that financial decisions be soundly structured. The guidance of a Financial Specialist will help protect the interests of your changing family by reviewing all assets and income and assisting in developing viable financial options in order to support two households on the same income that previously supported one. The Financial Specialist is trained to consider in detail the economic future of your family and help you reach creative solutions using the available resources. This professional will provide ongoing, practical guidance for planning and budgeting throughout the process. Evaluating the choices outlined by the Financial Specialist will allow the clients and attorneys to construct a comprehensive plan for the next stage of your family's life.
The Child Specialist is essential to the process as the only team member who functions as a child advocate while working with the couple to hone their co-parenting skills. Unlike the court-appointed evaluator ("730 evaluator") whose role is restricted to evaluation and recommendation, the specialist is able to assess and support the child in expressing his or her feelings and reactions to the divorce and family issues while using that information to help the parents understand their child.
The Child Specialist's role is one of support and education. It is the often the Child Specialist who challenges the parents to become more aware and sensitive to the needs of their children because this is the professional who has only the child's best interests in mind. In five-way meetings with coaches, the child specialist presents information that helps parents create a parenting plan that actually takes the needs and perspectives of the child consideration.
How is a Collaborative Divorce less expensive than a conventional divorce?
At first glance, having an entire interdisciplinary team of professionals at your disposal may not seem like a less-expensive option than an old-fashioned go-to-court divorce. And just like with a conventional divorce, individual circumstances will necessarily vary as to how quickly -- and therefore how costly – any specific process may be.
Studies do tend to show, however, that on average the total amount of money spent by both parties on attorneys fees, court costs, and expert costs to litigate a traditional divorce tends to be two to three times greater than what most spend for a Collaborative Process. This is true because instead of each spouse paying two expensive lawyers thousands of dollars to use complicated and expensive litigation tactics in court to try and get their needs met, the parties agree that their attorneys will work together to share the information that facilitates settlement of issues informally, and coordinated the use of neutral -- and much less expensive non-legal professionals to draft mandatory documents, and identify issues, and potential resolutions to those issues, surrounding their children and finances. Instead of paying expensive attorneys to deal with all aspects of your divorce process – both legal and non-legal -- the integrated model provides the couple with the services they need from a professional who is best qualified to address the issue at hand divorce, often an hourly rate that is less than that of your attorney.
How does Collaborative Practice focus on the future?
Divorce and termination of domestic partnerships are both an ending and a beginning. Collaborative Practice helps each spouse/partner anticipate their needs in moving forward, and include these in the discussions. When children are involved, Collaborative Practice makes their future a number one priority. As a more respectful, dignified process, Collaborative Practice helps families make a smoother transition to the next stage of their lives. The same benefits can also be achieved in employment, real estate, business, probate and other civil contexts.
What Makes This Different?
- All information is voluntarily shared as soon as possible.
- Good faith efforts to explore options are central to the process.
- Skills are developed which enable parties to handle new issues as they come up.
- Collaborative attorneys work only as settlement specialists, not litigators
- Participants can add neutral experts to their supportive team.
- Clients retain the power to create a resolution that fits their particular needs and priorities.
Collaborative Practice is a new and innovative way to resolve conflicts in a respectful and mutually agreed upon process. Rather than turning the decision-making power over to a judge or other third party, control of the collaborative solution is kept with the people directly involved in the dispute. When issues about children are part of the dispute, their needs are placed first. Clients and their attorneys are at the heart of a working team which often includes mental health, financial and other professionals as needed to provide information and help clients explore a variety of solutions. The clients don't sign a settlement agreement until each of them is comfortable with it.
What are Collaborative Law, Collaborative Practice, the collaborative process, and Collaborative Divorce?
Collaborative Law, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. While "Collaborative Divorce" refers to resolution of particular types of disputes (dissolution of marriages and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law areas where the parties are likely to have continuing relationships after the current conflict has been resolved.
Contact us today to learn more about whether the Collaborative Model, or another form of alternative dispute resolution, is right for your case.