Collaborative law is a form of negotiation with lawyers, but it differs from traditional forms. Collaborative lawyers are committed to assisting clients to reach a settlement without going to court. In fact, they're so committed to this concept they require all players to sign a contract stating they will withdraw from representation if the case cannot be settled or if one of the parties doesn't play by the rules of collaborative practice.
The underlying tenet of collaborative law is that it takes away the threat of going to court — the ultimate hammer. If the parties agree to stay out of court, they will need to put all of their energies into the settlement process.
Collaborative lawyers describe the process as making a commitment to a principled, negotiated settlement without the threat or use of power.
The Parties Agree
In collaborative law, parties agree that if an expert is needed, they will select a qualified neutral expert, and that any neutral expert used in collaboration can't be called as a witness if the case ultimately goes to trial. This means that you can use the expert to help you develop a settlement plan without fearing the expert might later be called to testify in a way that could be harmful to you or to your spouse. There's a greater sense of informality and freedom in working with this expert.
The parties and the lawyers also agree that anything said in sessions is confidential and can't be used in a trial unless the parties agree to use it. This means you can agree to values or a parenting plan for settlement purposes knowing that if you can't settle and have to go to trial the lawyers can't tell the court what went on during the negotiations.
The parties also agree to provide any relevant information and documents requested by the other side. Ordinarily, the parties also agree that the documents exchanged during this process won't be considered confidential and can be produced at a trial if the dispute can't be settled out of court. If you don't make this agreement, all the documents exchanged in negotiations will be shredded and you'll have to start all over with a formal discovery process. This would be unnecessarily time-consuming and expensive.
A Variation on Collaboration
A variation of the collaborative approach requires the divorcing couple to hire a male-female coaching team of two licensed mental health professionals, a child specialist, and a financial specialist if the amount of assets of the marriage is great enough. The coaching team helps the parties stay focused on interest-based negotiating, rather than posturing to try to gain a superior position or sniping at one another about the emotional stuff.
What is interest-based negotiating?
Interest-based negotiating focuses on the bottom line: for example, what ends up in your pocket when the dust settles or what kind of parenting plan works for you. The idea is to get what you want without worrying so much about what your spouse gets. Ideally, you both get what you want.
The idea here is to promote a sense of everyone working together to resolve the issues. Sometimes this can be challenging because you and your spouse may want the same thing — for example, primary physical custody of the children. Even so, the professionals will help you and your spouse examine each issue to help determine what would be best for all of the parties concerned.
Collaborative Law Is Becoming Common
Collaborative law is growing in popularity. It arose because many family law practitioners believe the legal system is poorly adapted to the needs of people getting divorced. These lawyers have decided the legal system promotes hostilities rather than helping families develop new structures that let everyone get on with their lives. Collaborative law puts the parties in charge and gives them the responsibility for making decisions. Lawyers provide legal advice and explain potential legal consequences of the parties' decisions. Parties can focus on their children's needs instead of on their animosity toward each other. When the divorcing parties reach a settlement using the collaborative process, they spend less money getting divorced and probably won't need to use the courts in the future. Sometimes they even like each other better!
You May Be a Groundbreaker
Collaborative law is a relatively new concept, but more and more lawyers are becoming familiar with the process. Some jurisdictions may even have collaborative law centers where you can locate attorneys who have been trained in the process. If you'd like to try this approach to your divorce, you'll need to look for lawyers who advertise themselves as collaborative.
Collaborative lawyers have a number of websites where you can learn more about them. Search for “collaborative law” on your favorite Internet search engine or contact your local bar association or court and ask if there are any collaborative law centers or attorneys in your area.
Once you've located an attorney, make sure to ask the lawyer about her training in collaborative law and her experience with the process. Since it's a relatively new concept, you probably won't be able to find someone who has been doing it very long. Try to find someone who has had both specialized training and a few cases under her belt. The last thing you need is to be a test case!
The Downside of Collaborative Law
When collaborative law works, it works very well. But when one side refuses to play by the rules, it does not work at all. Then both of you have to hire new lawyers and start almost from scratch. This can be frustrating, time consuming, and expensive.