How does Collaborative Law compare to Litigation?
Traditional litigation is a court-based, adversarial process that assumes a “winner” and a “loser” in every dispute. Because the parties are focused on who is “right” and who is “wrong”, they tend to establish positions early and hold them to the bitter end. Dialogue and understanding are marginalized in this process, because the parties and their lawyers are focused on winning their case instead of fairly resolving issues in a way that honors and respects each person’s role in the marriage. Invariably, money is spent needlessly defending yourself or your position in court.
With Collaborative Law there is no court appearance and no trial. You and your spouse/partner make all decisions together. The goal of collaboration is to reach a settlement that is acceptable to both parties. You have more control over the outcome of your dispute in a collaborative setting than in a courtroom, where the judge will have the final say.
Collaborative Law changes the emotional and adversarial landscape by seeking resolution in a meaningful way. Litigation can take a long time. But even if it doesn’t take a long time, it takes an unnecessary toll on everybody involved, especially children. Collaboration focuses on understanding everyone’s needs, interests, and values, and it helps the parties convert those interests into long-term, durable agreements. The process relies on teamwork to help you problem-solve and maintains open channels of communication between you and your spouse/partner.
In either model of practice, an attorney represents each party, but your collaborative lawyer has had special training the traditional lawyer has not had. This special training helps you and your spouse/partner get to and stay at the table, even when the going gets rough.
Parties who use Collaborative Law to settle their case are typically more satisfied with the result, maintain more control and voice in the process, and have built a foundation for future communication with the other party.
How does Collaborative Law compare to Mediation?
Mediating early in a case (called “Early Stage Mediation”) and Collaborative Law are both ways of resolving issues cooperatively. Collaborative Law is similar to Mediation in that neither requires a court appearance or a judge to decide the outcome of the dispute. Both focus on reaching a mutually agreeable resolution for all parties involved, and both focus on improving communication and negotiation abilities.
The main difference between the methods is the level of support the professional provides the parties. In Mediation, the mediator acts as a neutral, unbiased facilitator. Some mediators are lawyers; some are not. Nancy is a lawyer and a mediator, but never at the same time. When she is your mediator, she may share general legal knowledge when it makes sense to do so, but she does not give either party personalized legal advice, nor does she give either party her opinion of what the resolution “should” be.
It is not unusual for Nancy to recommend one or both parties talk with a mediation-minded lawyer about how the law impacts a person individually. Mediation sessions may be held with all parties at the table or in separate rooms with the mediator shuttling between.
In Collaborative Law, a different attorney represents each client and provides personalized legal advice, recommendations and guidance throughout the entire process. Most often, discussions are held with all parties and their attorney in the same room, and the parties communicate directly each other with the support of their own lawyer in the room.
In Collaborative Law, the attorneys enter into an agreement to cooperate and to not litigate even if the couple is at an impasse; however, the attorneys have an ethical duty to protect their own client’s interests.
In Collaborative Law, a team approach is typically used; the team provides structure and controls the process for the clients. The clients control the outcome and make their own decisions about how to restructure their futures. In Early Stage Mediation, the mediator works with the clients directly to determine the process, and a team approach may or may not be used depending on the unique needs and interests of the clients. In Early Stage Mediation, the attorneys are usually not present at most sessions; however, depending on the needs of the clients, attorneys may be present at some or all sessions. The attorneys in a mediation process do not promise not to litigate, and may or may not be “mediation-friendly”.
Both methods are used to resolve issues cooperatively, to empower the clients, and to consider client needs and interests. Early Stage Mediation can be more efficient and less costly for clients than Collaborative Law. On the other hand, Collaborative Law may be preferable if the clients need real-time legal advice and more team support.
What is a Participation Agreement?
In Collaborative Law, all parties and lawyers sign an agreement that if the case does not settle, the parties will each retain a courtroom lawyer. The Collaborative Lawyers may not serve as the courtroom lawyers.
This agreement helps to keep all participants focused on the goal of collaborative resolution and settlement. It also allows the lawyers to stay focused on reaching that settlement instead of planning for the possibility of becoming future adversaries. This encourages transparency and open communication, important elements that promote the ability of people to reach durable agreements.
If the parties can’t resolve their issues, then the Collaborative Professional Team withdraws from the process, and the collaborative lawyers transition their clients to courtroom attorneys so the parties can finish their case using the courts. (This is a rare occurrence, since your Collaborative Professional Team uses special techniques to manage conflicts and avoid impasse).
Do I have to agree to terms I don’t want?
No. You do not have to (nor should you) agree to terms that you don’t want. One of the main advantages of collaborative law is the ability to maintain more control on the result of your dispute. You have a collaborative lawyer to help you make good decisions and understand the implications of your decisions before you make them.
In traditional divorce proceedings, the judge determines the final result, which could leave you with an arrangement you don’t want.
Do I have to go to court?
No. Collaborative Law allows you to reach an agreeable resolution with no court appearance necessary. The lawyers will file all legal paperwork as required on your behalf.
Is Collaborative Law faster and less expensive?
As a general rule, Collaborative Law is less expensive and faster than litigation, but not as fast or inexpensive as Mediation.
In litigation, two lawyers prepare for trial as the default method of dispute resolution. They may file multiple motions prior to trial that pull the parties into court for interim orders, and they may request mounds of (at times irrelevant) financial documentation, including updates to documentation that has become stale due to the passage of time. It is not uncommon for each lawyer to hire experts for their “side” to prove their client’s case.
This means each party may have their “own” child custody evaluator, business valuation expert, financial expert, or real estate appraiser; and these experts may disagree with each other because they have been given limited information filtered through only one lens. As you can imagine, this process can take a long time and tends to be the most expensive financially and emotionally.
In Mediation, the parties work with one neutral mediator. Some mediators are lawyers; some are not. Nancy is a lawyer and a mediator, but never at the same time. When she is your mediator, she may share general legal knowledge when it makes sense to do so, but she does not give either party personalized legal advice, nor does she give either party her opinion of what the resolution “should” be. It is not unusual for Nancy to recommend one or both parties talk with a mediation-minded lawyer about how the law impacts a person individually. Even though the parties may each consult with their own lawyer, generally, the overall timeframe is the shortest and least expensive.
In Collaboration, there are two lawyers involved in the entire process, one representing each party. When appropriate, there are other Collaborative Professional Team members providing support to the parties. Since there are more professionals involved, the cost will be higher than Mediation, but this will invariably be less than litigation.
Is Collaborative Law right for me?
If the following statements describe you, collaboration may be the best fit:
- I want to reach an agreeable solution with my spouse/partner, regardless of our problems
- My children’s needs are a top priority
- I am willing to listen to the needs and concerns of my spouse/partner
- I am willing to voice my concerns and needs
- I am willing to listen with an open mind and work collaboratively towards a solution that works for all parties
- While the emotions I am dealing with are difficult, it is important to me to create a solid future plan and to handle my emotions in a skillful way
- I understand the importance of communicating in a respectful manner
- I agree to act ethically towards my spouse/partner
- I want to maintain control of my life decisions and the divorce process instead of allowing the court to decide this for me
- I want to work with professionals who have the training necessary to keep me out of court
- I want a lawyer to assist me through this process
Is Collaborative Law used in other cases outside of divorce?
Collaborative Law describes a way of approaching a case, and it can be used for many kinds of cases. In addition to divorce and legal separation, Collaborative Law has been used in family law cases for prenuptial agreements and postnuptial agreements, as well as parenting plans and child support modifications. Collaborative law is also a good fit for civil, business, and probate disputes.
Can documents shared in the collaborative process be used later in court if the collaborative process does not work?
This will be covered in your Participation Agreement. Typically, documents created during the Collaborative process may not be used outside of the process unless both parties agree. Items that were not created as a result of the process may be used, such as payroll stubs, bank statements, tax returns, and the like.
I want a Collaborative Divorce. How do I talk with my spouse/partner about this?
Talk to a collaborative attorney who can help develop a customized plan. This may include sharing a book or information from the web, writing a letter to your spouse/partner or inviting your spouse/partner to talk with a Divorce Coach.
What is the Collaborative Professional Team?
The Collaborative Professional Team is a team of independent, specially trained collaborative professionals from multiple disciplines, who form a team along with your collaborative lawyers. Your collaborative lawyers are sometimes the only members of your Collaborative Professional Team. Other team members may be hired to work with you, as needed, around the relational, financial, occupational, emotional and psychological issues that go along with separation and divorce. The parties and their collaborative lawyers will decide whether other team members are needed in your unique situation.
The Collaborative Professional Team always includes your collaborative lawyers, and may include:
- Neutral Child Specialist
- Divorce Coach (some are neutral; others focus on just one party)
- Neutral Financial Specialist
- Other allied professionals, as needed
What is a Collaborative Lawyer?
A collaborative lawyer is a professional who is specially trained to practice law in a collaborative approach. The attorney works with both parties and other representation to works towards a resolution that meets the needs of the parties involved.
What is a Neutral Child Specialist?
A child specialist is a mental health professional with additional, in-depth experience in separation and divorce. This includes how to provide a safe, efficient way to include your children in your divorce without putting them in the middle or having them feeling pressured to choose sides. A child specialist is neutral and does not work for either parent, but instead focuses on finding out how your children are experiencing the separation and how to best incorporate their voice (not choice) into your parenting plan.
Children are affected by the divorce and often in ways that are not readily apparent.
Even when divorcing parents are able to work quite well together, there is value to having a trained mental health professional consult with the parents and, perhaps, meet with their children.
What is a Divorce Coach?
Divorce coaching plays an important role in family law matters by identifying emotional issues that interfere in the legal process, providing useful family information to clients and other professionals, and helping clients address challenges during their divorce. In essence, a Divorce Coach helps you get from where you are now to where you want/need to be, in the most efficient way possible.
There are two kinds of divorce coaching – Couple’s Facilitator (meets with both parties as a neutral) or Individual Divorce Coach (meets with one of the parties, while the other spouse/partner meets with his/her own Divorce Coach). For both of these, a Divorce Coach uses therapeutic skills and knowledge to support, educate, and prepare clients for the successful meetings and negotiations of a divorce settlement agreement.
Coaching is a brief, solutions-oriented, and supportive process that improves and facilitates communication during the process. Coaching helps reduce the emotional intensity of the divorce and helps the client separate legal and practical issues from emotional ones. Coaching assists with the transition from the spousal relationship to a divorce partnership and a co-parenting relationship (if applicable).
What is a Financial Specialist?
A financial specialist has additional, in-depth training to understand the unique financial challenges of divorce and separation. A financial specialist is neutral and does not work for either parent, but instead helps the parties with the following tasks: a) gather, understand, organize and value your financial data; b) review your assets and liabilities; c) review your income and expense figures, and; d) develop viable options for your financial future.
What other allied professionals might be needed?
At times, people need guidance from real estate appraisers, brokers, business valuation experts, and others, depending on your unique situation.
I like my accountant, who has my financial information. I do all the financial things for the family and my spouse/partner has not expressed interest in taking part in our finances. Can I use this person as a team member in the collaborative process?
Possibly, but not most likely. In Collaborative Law, all specialists involved should be specially trained in collaboration. This ensures a focus on neutrality and each party being equal. If you have an existing relationship with a specialist yet your spouse/partner does not, this could create an imbalance in the process. You can always request this during the team member discussion process.
How fast does the collaborative case go?
You and your spouse/partner set the pace for your collaborative case. We will discuss this in the initial process, and revisit it as the process unfolds. These big life decisions should not be made in a rush, but when you are emotionally ready. This could also depend on the amount of information needed and how responsive you and your spouse/partner are in providing the information needed.
Typically, this will be driven by the clients and not by the law professional’s schedule.
- Are there other resources where I can go to learn more about the collaborative process?