Collaborative law is a way of handling a family law case that intends to keep parties out of court. It should be the goal of every competent family law attorney to keep cases out of court and resolved amicably.
Collaborative Law is not for everyone and the same goal can be accomplished via pre-suit mediation or by attending mediation during a pending proceeding.
The main concept in either mediation or Collaborative Law is to “troubleshoot and problem solve” rather than to fight and win.
As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. Neither party may initiate court proceedings during the collaborative process, which has an effect on the filing date should the collaborative process fail. If the case is not resolved, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case. The parties must start from scratch.
Collaborative Law Proceedings
Collaborative Law proceedings require the parties to sign a contractual agreement which include the following terms:
Disclosure of Documents
Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
As part of the process, all participants agree to insulate the children from the proceeding and to actins such a way as to minimize the impact of the divorce on them.
The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (e.g. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
The primary goal of the process is to work toward an amicable solution and to create a “win-win” situation for all.
Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.
A team of professionals is assembled to help the parties understand and resolve their disputes in many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.
Keep in mind that not every case requires a team of professionals.
A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.
Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
As in Mediation, Most Cases Settle
Most cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions.
Certainly, collaborative law will not work in every case but if both parties are committed to the process Collaborative Law can lead to settlement within a faster timeframe than when litigation is required.