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 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.