What is it?
Collaborative family law (also called collaborative divorce) is a unique process that enables couples who have decided to separate or end their marriage to work with their lawyers and a qualified interdisciplinary team of professionals, including forensic accountants, appraisers, life coaches, child specialists and other mental health professionals, in order to resolve their cases without any contested litigation.
At the heart of collaborative family law is the idea that a divorce is best handled privately, honestly and without sacrificing anyone’s dignity. The process offers parties protection and well-rounded legal, psychological and financial guidance without the constant underlying fear of the consequences of contested litigation. Collaborative law is founded on three principles:
- a pledge not to litigate disputes in court;
- an honest, voluntary, prompt, and good-faith exchange of relevant information without formal discovery; and
- a commitment to strive for solutions that take into account the highest priorities of both parties and their children.
The collaborative process can be used to facilitate a broad range of family issues, including, but not limited to timesharing, equitable distribution and support. The collaborative process can even be used to negotiate pre and postnuptial agreements.
How does the Collaborative Process work?
When two parties decide to engage in the collaborative process, they each retain separate lawyers that are typically trained in the collaborative process. Upon execution of a collaborative participation agreement, the parties also decide whether additional professionals should be involved. Once all of the professionals are engaged, several face-to-face meetings will be scheduled to exchange information, identify and address issues, and finalize settlement terms.
During the process, the parties also will have individual meetings with their lawyers and the other professionals. Throughout the process, there is always an effort to keep the clients’ focus on problem-solving and making plans for the future, instead of on casting blame or making accusations about what may have happened in the past.
If the negotiations fall apart and the parties wish to proceed to court, the lawyers are terminated and the parties must hire new lawyers to handle the litigation.
How is the collaborative process different from mediation?
During the collaborative process everyone participates in an open, honest exchange of information. Neither party takes advantage of the other party, but instead identifies and corrects mistakes and inequities. Often the parties enter into the collaborative process because both parties desire to insulate their children from their disputes. Both parties in the collaborative process use joint accountants, mental health consultants, appraisers, and other consultants, all of whom share the goal of reaching a resolution that works best for everyone involved, as opposed to trying to seize and capitalize on every advantage that arises.
Much different than the collaborative process, mediation usually takes place during a contested litigation. It can occur before or after the parties have been to adversarial proceedings in court and engaged in damaging attacks and counter-attacks on each other. The parties may have already involved their children in the litigation and the parties may have already engaged individual experts whose goal it is to maximize how much their clients obtain in court or at mediation, which necessarily comes at the other party’s expense. The process, although meant to encourage settlement, still takes place within the constraints of an adversarial litigation process that encourages positional bargaining and a hard and fast win/lose mentality.
Collaborative law certainly is not for everyone and the vast majority of cases are settled, even those that go through some amount of litigation. We make sure all of our clients understand that even though many family law cases settle after significant litigation has already occurred, by that time a great deal of money has been spent and a great deal of emotional damage may have occurred.Settlements are often reached under considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. We have found that the most satisfactory settlements and the ones that lead to people moving forward with their lives without constantly fighting over the past are the ones that are truly “win-wins.”