Collaborative Family Law

In collaborative law, a team of professionals helps parties reach a resolution of issues between them without the threat of litigation.  Separating or divorcing couples may use collaborative law to deal with co-parenting, financial, legal, and emotional issues.  The collaborative model also works well for unmarried couples who are separating and have property and/or child issues, and for couples who are crafting premarital agreements.

Each person retains an attorney who is trained in the collaborative process. The parties and their attorneys sign an agreement that includes promises to be forthright and committed to the process and to refrain from using the court system to resolve any disputes.  The parties reach agreement on the issues between them in a series of settlement conferences with the two of them and their collaborative counsel, often with the assistance of other collaborative team members.  If one party later decides to quit the collaborative process, then each party’s collaborative attorney must withdraw, and the parties must seek separate litigation counsel.  This requirement provides strong incentive for all involved to remain in the collaborative model until all of the couple’s issues are resolved.

Other potential team members include mental health professionals who may serve as coaches or child specialists, and financial specialists.  The goal of the entire collaborative team is to help the couple reach a resolution of the issues between them which meets the needs of all family members while minimizing the negative emotional and economic consequences of any separation or divorce.

I have completed substantial training in the collaborative family law model, and remain deeply committed to helping my clients resolve their issues effectively, creatively, and in a mutually respectful manner, using the principles of the collaborative model.

The Collaborative Process

COLLABORATIVE TEAM

Begins with the couple, both of whom must agree to use the collaborative process.  In family law, a couple may use the collaborative law model to help them work through a separation and/or divorce, or to help them negotiate a premarital agreement.  The couple may then meet with an attorney or other team member as the entry point to the process. Each party retains an attorney who is trained in the collaborative model, and each may work with a coach. If the couple is separating or divorcing and there are children, a child specialist is brought in to help the parents address their children’s needs and interests. A neutral financial specialist is brought in to assist with valuation and division of assets and debts, monthly support, expense allocation and tax issues. The team works together to help the couple work through the emotional, financial and legal aspects of their divorce or separation. GOALS

Achieve a positive resolution that meets the needs of all family members. Minimize the negative emotional consequences of a separation or divorce. Maximize the economical, social, and emotional potential of each person in the family. GROUND RULES

Both parties and their attorneys pledge to reach a settlement of all issues between the parties which meets the highest priorities of both of them, and which protects the best interests of their children. Professional team members agree they will not continue with the case if either party decides to turn to the court system and adversarial approach to decide any issues. Both parties and their attorneys agree to a full and honest exchange of all pertinent information. If the parties need the assistance of a child specialist or financial consultant, they hire the professional together, as a neutral, to help both of them understand the issues and fashion their agreement. Although collaborative team members may share information with each other to help the couple meet their goals, the information may not be used in court. ROLE OF THE COACHES

Help the parties identify and prioritize their concerns. Help each person communicate effectively. Assist the parties in issue identification and problem solving. Support the development of effective co-parenting skills. Work with the family and other team members to enhance communication and reduce misunderstandings between the parties. Keep the collaborative process moving toward a resolution. ROLE OF THE COLLABORATIVE ATTORNEY

Represent the individual client, while supporting the overall goals of the collaborative process. Educate and counsel the client about legal issues and settlement options. Work collaboratively with the other attorney and team members. Help the client articulate his/her interests and reach an agreement that meets the needs of the entire family, including both parties and their children. Draft legal documents, including the settlement agreements, and accompany the client to any final hearing. ROLE OF THE FINANCIAL SPECIALIST

Assist the parties in gathering and analyzing income, expense, asset and debt information. Provide ongoing practical financial expertise in valuing assets, planning, projecting incomes, calculating support and budgeting throughout the negotiation process. Help the parties explore financial options and provide information regarding tax consequences. ROLE OF THE CHILD SPECIALIST

Provide the child with an opportunity to be heard regarding a divorce, separation or other family issues. Provide parents with developmental information, emotional insights and guidance to help them meet the needs of their children. Support an effective co-parenting plan by providing information to the parents and coaching team. ROLE OF THE CLIENT

Work for the best interests of the entire family. Listen and communicate honestly and respectfully in discussions among the team. Fully and honestly disclose all relevant information needed to resolve the issues. Reach agreements that meet the needs of all family members. To find more information about this model, please see the web site for the Collaborative Family Law Council of Wisconsin at www.collabdivorce.com, as well as the web site for the International Academy of Collaborative Professionals at www.collaborativepractice.com.

PRINCIPLES AND GUIDELINES FOR THE PRACTICE OF COLLABORATIVE LAW

GOALS.

We acknowledge that the essence of “Collaborative Law” is the shared belief by participants that it is in the best interests of the parties and their families in typical family law matters to commit themselves to avoiding litigation. We therefore adopt the collaborative law conflict resolution process, which does not rely on a court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well being of the family. Our goal is to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to the participants and their families. We commit ourselves to the Collaborative Law process and agree to seek a better way to resolve our differences justly and equitably.

A. NO CONTESTED COURT PROCEEDINGS OR FORMAL DISCOVERY.

We commit ourselves to settling our case without contested court proceedings. We agree to give full, honest and open disclosure of all information, whether requested or not. There will be no formal discovery. We agree to engage in informal discussions and conferences to settle all issues. We agree to direct all attorneys, accountants, therapists, appraisers and other consultants retained to work in a cooperative effort to resolve all issues without resort to litigation or any other external decision-making process except as mutually agreed.

B. CAUTIONS.

We understand there is no guarantee that the process will be successful in resolving the issues between us. We understand that the process cannot eliminate concerns about the disharmony, distrust and irreconcilable differences which have led to the current conflict. We understand that we are still expected to assert our respective interests and that our respective attorneys will help each of us do so. We understand that we should not lapse into a false sense of security that the process will protect each of us.

C. PARTICIPATION WITH INTEGRITY.

We will work to maintain the privacy, respect and dignity of all involved. We shall maintain a high standard of integrity and, specifically, shall not take advantage of each other or of the miscalculations or inadvertent mistakes of others, but shall identify such miscalculations or inadvertent mistakes when discovered.

D. EXPERTS.

If experts are needed, we will retain them jointly unless both parties and their attorneys otherwise agree in writing. In the event that the Collaborative Law process terminates, all experts will be disqualified as witnesses, and their work product will be inadmissible as evidence, unless the parties agree otherwise in writing.

E. CHILDREN’S ISSUES.

In resolving issues about the enjoyment of and responsibility for our children, the parties, attorneys and therapists shall make every effort to reach amicable solutions that promote the best interests of the children. We agree to act quickly to mediate and resolve differences related to the children to promote a caring, loving and involved relationship between the children and both parents.

F. NEGOTIATION IN GOOD FAITH.

We acknowledge that each of our attorneys is independent from the other attorney, and each attorney represents only one party in our collaborative family law process. We understand that the process, even with full and honest disclosure, will involve vigorous good faith negotiation. Each of us will be expected to take a reasonable position in all disputes. Where such positions differ, each of us will be encouraged to use our best efforts to create proposals that meet the fundamental needs of both parties. If necessary, each of us will compromise to reach a settlement of all issues. Although each of us may discuss the likely outcome of a litigated result, none of us will use threats of litigation as a way of forcing settlement.

G. ABUSE OF THE COLLABORATIVE PROCESS.

The parties understand that both Collaborative Law attorneys shall withdraw from this matter as soon as possible upon learning that either client has intentionally withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the Collaborative Law process. Examples of such violations of the process are: the secret disposition of assets, liabilities or income; failure to disclose the existence or true nature of assets and/or obligations; failure to participate in the spirit of the collaborative process; abusing the minor children of the parties; or planning to flee the jurisdiction of the court with the children.

H. DISQUALIFICATION BY COURT INTERVENTION.

We understand that our attorneys’ representation is limited to the Collaborative Law process and that neither of our attorneys can ever represent us in court in a contested proceeding against the other party.

In the event the case returns to court in a contested proceeding, both attorneys will be disqualified from representing either client in the matter.

I. PLEDGE.

BOTH PARTIES AND ATTORNEYS HEREBY PLEDGE TO COMPLY WITH AND TO PROMOTE THE SPIRIT AND WRITTEN WORD OF THIS DOCUMENT.

Collaborative FAQs

Collaborative family law is a process by which people may resolve their couple and family disputes with dignity and mutual respect. It is based on three principles:

A pledge not to go to court to resolve disputes;

An honest, voluntary and good faith exchange of information by both parties, without formal discovery; and

A commitment to strive for resolutions that take into account the highest priorities of both parties and their children.

The collaborative process often uses an interdisciplinary team approach in which the parties may engage personal coaches, a child specialist and a financial specialist to assist them in the information gathering and problem solving process

You are planning to marry, and you wish to negotiate a premarital agreement with your partner;
You are planning to buy real estate with your partner, and you wish to negotiate an agreement regarding your co-ownership of your property;
You have a relationship which is breaking up, and you need to reach agreement regarding your property and children;
You have a non-marital child, and you wish to negotiate a agreement regarding your child’s legal custody, physical placement and support;
You were divorced previously, and you wish to negotiate changes to your divorce judgment.

To reach an agreement which meets the legitimate needs of both parties and protects the best interests of their children;
To maximize the economical, social, and emotional potential of each person in the family; and
To minimize the negative emotional consequences of a break-up on all family members.

You and your partner may want to consider collaborative family law if you hold the following values:

You want a civilized, respectful resolution of the issues.

You want to keep open the possibility of a friendship with each other.

You have children you want to parent together, and you want the best possible co-parenting relationship.

You value privacy in your personal affairs.

You value control and autonomous decision making, and you do not want to turn over decisions about your future financial or child-rearing arrangements to a stranger.

You want to reach a resolution of the issues which meets the legitimate needs of your entire family.

The collaborative law process does not guarantee you that every asset or every bit of income will be disclosed, any more than the conventional litigation process can guarantee that. In the end, a dishonest person who works very hard to conceal assets can sometimes succeed, because the time and expense involved in investigating concealed assets can be substantial and the results uncertain.
You are generally the best judge of your partner's basic honesty. If s/he is fundamentally dishonest, your case is probably not a good candidate for the collaborative family law process. But if, despite your problems, you believe that your partner will disclose all of his or her assets and income, then the process may be a good choice for you.

That can happen, just as it can happen in conventional legal representation. However, in collaborative law, the collaborative agreement requires an attorney to withdraw if his/her client is being less than fully honest, or is participating in the process with less than full good faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the attorney has promised in advance that he/she 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.

To start the collaborative process, each party retains an attorney who has been trained in collaborative family law. Both parties and their attorneys then sign two documents in which they agree to engage in the collaborative process: the “Principles and Guidelines,” and a “Collaborative Stipulation and Order.” In these documents, the attorneys and parties agree that both collaborative attorneys will withdraw from continued representation if either party resorts to litigation. All four also agree to an open and honest disclosure of all financial or other information needed by the parties to resolve their issues, and they pledge to reach an agreement which will meet the legitimate needs of both parties and protect the best interests of their children.

The coach is typically a psychologist, social worker and/or family therapist who works with one party and the team to accomplish the following tasks:

Help the client identify and prioritize his or her concerns.

Provide emotional support to the client moving through the loss, grief and anger of a separation.

Help the client communicate effectively with the other team members.

Assist the client in issue identification and problem solving.

Help the client develop and support an effective parenting plan, and develop co-parenting skills.

Help the client and the team overcome any roadblocks to resolution

To work for the best interests of the entire family.

To listen and communicate honestly and respectfully in the discussions among the team about the issues between the parties.

To provide all financial or other relevant information needed by the team to address the issues.

To reach agreements that meet the needs of all family members.

Ideally, the collaborative team consists of the couple, their attorneys, their coaches, a financial specialist and, if appropriate, a child specialist. Each member of the team is there to help the parties reach an agreement. Even though parties may feel overwhelmed to be adding professionals to their team, the team system actually helps them reduce their costs. First, it is more efficient to have the appropriate professional assist with an issue. Second, the mental health professionals and financial professionals typically bill their time at lower rates than do the attorneys. Third, the ongoing communication between the team members provides support for the couple and helps them maintain a forward movement in resolving the issues between them.

A certain degree of trust between the attorneys is essential for the collaborative law process to work. Unless the attorneys can rely on each other's representations about full disclosure, there is insufficient protection against dishonesty by a party. In addition, collaborative law demands special skills from the attorneys in guiding negotiations and managing conflict. These are not the skills an attorney typically learns. Specialized training in collaborative family law is required. Without the special skills, an attorney would have a hard time working effectively in a collaborative law negotiation. Therefore, both lawyers must be trained in the collaborative process. That doesn't mean your attorney cannot work cordially or cooperatively with another lawyer who does not practice collaborative family law, but the formal agreements that are the heart of collaborative family law will not be used.

The special power that collaborative family law has to spark creative conflict resolution seems to happen only when the parties and their attorneys are all working together to solve the same problems in the same way. If the attorneys can still consider resort to the courts as an option, their thought process does not become transformed. Their creativity is actually crippled by the availability of court and conventional trials. It is only when each person realizes that solving both clients' problems is the responsibility of all four participants that a special "hypercreativity" of collaborative law gets triggered. Collaborative law is not just two attorneys 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.