Collaborative Law – FAQs
1. What are Collaborative Law, Collaborative Practice, the Collaborative Process, and Collaborative Divorce?
Collaborative Law, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. However, they are all components of Collaborative Practice, which has these key elements: 1) the voluntary and free exchange of information; 2) the pledge not to litigate and the withdrawal of both attorneys—and in most cases all of the other professionals on the team—should either party initiate litigation in spite of this pledge, and 3) the commitment to resolutions that respect the parties’ shared goals. Collaborative Law describes the legal component of Collaborative Practice, made up of the parties and their attorneys. Collaborative Process means the key elements of the process itself.
2. 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 during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. 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 lawyers and the parties, until both parties are satisfied with the document.
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.
3. What is the difference between Collaborative Practice and conventional divorce?
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually may result in a settlement achieved with the involvement of the court. Sometimes, a trial is necessary. 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. They 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.
4. How does Collaborative Practice actually work?
When a couple decides to pursue a Collaborative Practice divorce, they each hire Collaborative Practice lawyers. All of the parties agree in writing not to go to court. Then, the spouses meet both privately with their lawyers and in face-to-face discussions. 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 between spouses and their counselors are intended to produce an honest exchange of information and expression of needs and expectations. The well being of any children is especially addressed. Mutual problem solving by all the parties leads to the final divorce agreement.
5. Is Collaborative Practice a faster way to get a divorce?
Individual circumstances determine how quickly any divorce process proceeds. However, Collaborative Practice can be a more direct and efficient form of divorce. 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 appointments that may be necessary with conventional divorce.
6. Is Collaborative Practice cheaper and faster than court?
We believe that, generally, it is less expensive to resolve family law issues by way of a negotiated agreement than through court. However, like anything else involving highly trained professionals, the lawyers that will be working for you and with you will be charging an hourly rate for their time, and that rate is not “cheap”. However, they won’t be wasting their time (and your money) on preparing lengthy court documents and filings, waiting in court, or trying to convince a judge that you are right. Instead they will be working on and managing the negotiations, getting you focused on your needs and wants, reviewing your legal rights, crunching numbers, and building an agreement piece by piece.
Our experience is that the process is faster than court. The parties and the lawyers can, subject to everyone’s schedules and comfort level, move the matter along quickly. We are not subject to the pace of the court docket. Generally, parties choosing the collaborative process are motivated to resolve the case.
7. Why haven’t I heard of this before?
“”Collaborative Family Law” is new to the Northeast. It was born in 1991 in Minneapolis, Minnesota, U. S. A., and started with an idea, by a group of lawyers, to try to “do divorce differently”. The basic concepts were put together, and they started to practice this way with a small group of lawyers. Their success (and the positive feedback from clients) caused the idea to grow, and from that beginning the idea of collaborative practice slowly moved to the Western U. S., moving north into British Columbia, and then slowly east.
8. What happens if one side or the other does play “hide the ball” or is dishonest in some way, or misuses the Collaborative Law process to take advantage of the other party?
That can happen. There are no guarantees that one’s rights will be protected if a participant in the collaborative law process acts in bad faith. There also are no guarantees in conventional legal representation. What is different about collaborative law is that the collaborative agreement requires a lawyer to withdraw upon becoming aware his/her client is being less than fully honest, or participating in the process in bad faith.
For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.
9. How do I know whether it is safe for me to work in the Collaborative Law process?
The collaborative law process does not guarantee you that every asset or every dollar of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works very hard to conceal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high, and the results uncertain. However, far greater efforts to track down concealed assets and income can be expected in conventional litigation than in collaborative law, which relies upon voluntary disclosure.
You are generally the best judge of your spouse or partner’s basic honesty. If he or she would lie on an income tax return, he or she is probably not a good candidate for a Collaborative Law divorce, because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty, then the process may be a good choice for you. The choice ultimately is yours.
10. Is Collaborative Law the best choice for me?
It isn’t for every client (or every lawyer), but it is worth considering if some or all of these are true for you:
- You want a civilized, respectful resolution of the issues.
- You would like to keep open the possibility of friendship with your partner down the road.
- You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with litigated dispute resolution between parents.
- You and your partner have a circle of friends or extended family in common that you both want to remain connected to.
- You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
- You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).
- You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
- You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
- You understand that conflict resolution with integrity involves not only achieving your own goals but finding a way to achieve the reasonable goals of the other person.
- You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge— fixing the problem rather than fixing blame.
11. My lawyer says she settles most of her cases. How is Collaborative Law different from what she does when she settles cases in a conventional law practice?
Any experienced collaborative lawyer will tell you that there is a big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law cases settle figuratively, if not literally, “on the courthouse steps”. By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do.
Nothing could be more different from what happens in a typical Collaborative Law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.
12. Why is it so important to sign on formally to the official Collaborative Law Agreement? Why can’t you work collaboratively with the other lawyer but still go to court if the process doesn’t work?
The special power that Collaborative Law has to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the lawyers can still consider unilateral resort to the courts as a fallback option, their thought processes do not become transformed; their creativity is actually crippled by the availability of court and conventional trials. Only when everyone knows that it is up to the four of them and only the four of them to think their way to a solution, or else the process fails and the lawyers are out of the picture, does the special “hypercreativity” of Collaborative Law get triggered. The moment when each person realizes that solving both clients’ problems is the responsibility of all four participants is the moment when the magic can happen.
Collaborative Law is not just two lawyers who like each other, or who agree to “behave nicely”. It is a special technique that demands special talents and procedures in order to work as promised.
Any effort by parties and their lawyers to resolve disputes cooperatively and outside court is to be encouraged, but only Collaborative Law is Collaborative Law.
13. How do I enlist my spouse in the process?
Talk with your spouse, and see whether there is a shared commitment to collaborative, win-win conflict resolution. Share materials with your spouse such as these questions and articles that discuss Collaborative Law. Encourage your spouse to select counsel who has experience and training in Collaborative Law and who works effectively with your own lawyer. Lawyers who trust one another are an excellent predictor of success in dispute resolution.
14. Isn’t mediation cheaper because only one neutral, instead of two lawyers, has to be paid?
No, mediation is not usually cheaper. Because there is nobody in a mediation negotiation whose job it is to help the client refine issues and participate with maximum effectiveness in the process, mediation can become stalled more easily than Collaborative Law does. Mediations can take longer, and can involve more wheel-spinning, than Collaborative Law negotiations. They also can be at greater risk for falling apart entirely, since the mediator must remain neutral and cannot work privately with the more disturbed client to get past impasses. In either event, the resulting inefficiencies can be costly.
Also, most mediators strongly urge that independent lawyers for each party review and approve the mediated agreement. If the lawyers have not been a part of the negotiations, the lawyers may be unhappy with the results and a new phase of negotiations or even litigation may result. If the lawyers do participate, then three professionals are being paid in the mediation.
Lawyers who do both mediation and collaborative law typically see Collaborative Law as the model that offers the greatest promise of a successful outcome for the broadest range of divorcing couples. Of course, if two calm and reasonable people whose issues are not complex go to a mediator, they can usually achieve agreement efficiently and often at low cost. Generally, it is only after the fact that we know that a couple was well-suited for mediation. Strong feelings arise unexpectedly; issues become more complicated than anyone anticipated. Collaborative Law can usually deal with these predictable happenings more readily than can mediation.
Many people genuinely believe that they will have a very quick and simple divorce negotiation, but life can be surprising. Many people prefer to have a process in place from the start that is well-equipped to deal with unexpected problems rather than to have to terminate mediation and start over with litigation counsel.