What Is Collaborative Law?
Collaborative Law is a powerful, binding, yet non-litigation approach to solving legal problems. It takes “going to court” off the table.
It is highly effective in Family Law, especially divorce proceedings. Collaborative Law is the better way to solve any dispute involving children, parents, anyone needing to nurture/maintain relationships long after the legal action is done.
Perils of litigation:
In litigation, each side prepares a case to persuade the judge that only her/his view has merit. Trust and respect are often shattered by airing each party’s weaknesses, failures, misdeeds and mistakes in the often embarrassing public forum of a courtroom. Further, the parties are essentially asking strangers to make decisions about their children and property.
After such a wrenching experience, a respectful post-divorce partnership has little chance of succeeding, much less nurturing the children.
Hope of collaboration:
To resolve a case through Collaborative Law, the parties engage in a series of settlement meetings outside the courthouse. Each party is represented by her/his own attorney trained in Collaborative Law practice.
Plus, if the parties use the team model, the sessions include neutral a communication/counseling specialist and a neutral financial expert – both also trained in the Collaborative Law process – to serve all parties. All agree to abide by strict rules of communication to facilitate courtesy, respect and results.
The parties, their attorneys and the neutral specialists are encouraged to speak freely during meetings.
All work together as a team to share documents and set goals, agendas and realistic deadlines. All work toward serving the interests of all parties, especially the children. If other experts are needed for example to value a home, the parties can agree to hire one neutral expert for each intended specialized purpose.
The process works.
Every Collaborative Law attorney is trained to listen to and serve his/her own client’s needs and interests. At the same time, each attorney also gives due consideration to the other party’s needs and interests.
Although each attorney represents her/his own client first and foremost, both attorneys focus on the big picture: resolving the problems to the optimal benefit of both clients and their children
How Does Collaborative Law Differ From Mediation?
Collaborative Law is not a mediation tool, though mediation may be used in the Collaborative process. Collaborative Law differs in crucial ways:
1. Your attorney is always with you
A Collaborative client can rely on his/her lawyer every step of the way.
In mediation, the attorneys are often not allowed for part or all of the actual mediation, and parties have the option of not having counsel. Even with attorneys present, the Texas “caucus” model of mediation has a mediator shuttling between two rooms while the parties and their respective attorneys don’t meet face to face with the other side. A mediator cannot represent either party and may not even be a lawyer. If not, the mediator cannot give legal advice. Nor can he/she draft the documents or finalize the case.
It can be awkward, at best.
In Collaborative Law, the attorneys and neutral professionals form a team to assist the clients in reaching a non-litigated settlement. All negotiations take place during scheduled meetings with both parties, and their counsel present and if the team model is used, a neutral communications facilitator and a neutral financial specialist participate throughout the process as well.
Every meeting has a specific agenda formulated in advance; so, there are no surprises and everyone is prepared to discuss the subject matter.
2. The threat to “take it to court” is diminished.
In mediation, parties represented by counsel may keep their attorneys and move on to litigation with information gained through mediation.
By contrast, if the Collaborative Law process breaks down, Collaborative attorneys must withdraw and the parties must retain new counsel.
Documents and information gathered during the process cannot be used by successor counsel in any litigation unless both parties agree or unless it’s discoverable in the normal legal process
Both Collaborative parties are put at the disadvantage of “starting over,” which will take its toll financially and emotionally. As a result, there is built-in motivation to stick with the Collaborative Law process, even when the going gets tough.
Further, there is no motivation for Collaborative attorneys to sabotage the process in order to make more money in litigation and one hundred percent of the Collaborative attorney’s efforts go toward settlement. Since over 95% of family law disputes settle outside of court, focusing all your time and money on settlement just makes sense.
Who Should Use Collaborative Law?
Nearly every divorcing parent, and the children, can benefit substantially.
Collaborative Law is the answer for any client interested in resolving a case privately, “outside of the system,” in an amicable and respectful setting. Any Collaborative settlement, though, is legally binding on all parties.
You’re smart enough; you’re good enough…
This process provides a safe, yet empowering environment for clients who might be uncomfortable stating their position in the public arena.
In those cases wherein one partner appears to hold more influence, power or information than the other partner, Collaborative Law balances the equation for all parties, including the children.
Think about it: An attorney is at your side to help gather and interpret financial information, explain documents and explain the law
The neutral professionals provide expert guidance on both the emotional and financial issues which are so intimately intertwined with the legal issues in any divorce. If additional help is needed outside of the team, the team members know the best resources and can refer you to a reliable accountant, other financial experts, a child psychologist or other appropriate therapist, among other professionals. Your Collaborative team can give you the confidence needed to fully participate in problem-solving and decision-making.
What Roles Do Attorneys Play In The Collaborative Process?
Attorneys have an ethical obligation to represent their clients vigorously and completely.
Your attorney is still your advocate.
Although it may appear that your attorney is being sympathetic to your partner’s point of view, remember that your attorney is modeling respectful behavior and listening.
Affirming what your partner says does not mean that your attorney agrees with your partner’s position or that he/she is abandoning your position. Because all four of you are trying to solve the same problem, your partner or your partner’s attorney might just have an idea worth considering.
Communications between you and your attorney are confidential unless you instruct your attorney otherwise. However, because the goal of Collaborative Law is frank, candid and honest negotiation, you should understand going in that the process doesn’t support withholding information.
What Roles Do Neutral Professionals Play In The Collaborative Process?
Neutral professionals help the clients navigate through complex issues.
Divorce has three “estates”: the psychological estate, the financial estate and the legal estate. Any seasoned divorce lawyer will tell you that divorce is more about emotional and financial issues than legal issues. In the Collaborative process, each of the three “estates” are addressed by a specialist. This process treats the “whole” client by bringing to the table the requisite expertise for each area of need.
Lawyers are not trained to handle the emotional issues of a family going through divorce. Bringing in a neutral trained mental health professional gives the clients and their children a specialist to help manage the clients through the intense ups and downs and difficult emotional decisions inherent in every divorce. The mental health professional does not provide therapy rather his/her job is to assist in the management of emotions, to help keep the process on track and to reduce the fallout which can be caused by “out of control” emotions.
In addition, while lawyers are knowledgeable about financial issues, they are not certified divorce financial planners. Having a neutral financial expert saves time and money by bringing in one neutral expert to gather the financial information, prepare spreadsheets and help think through the myriad of financial issues raised by the creation of two households from what was one. Often too there is usually one spouse who has tended to the finances while the other spouse doesn’t have a knowledgeable perception of the estate. The neutral financial expert helps level the playing field.
Having neutral specialists brought in for resolving the issues and impasses in each area of need enhances trust and moves the process along.
How Do I Choose A Collaborative Law Attorney?
If you choose the Collaborative way, you should hire an attorney trained in the process.
Collaborative Law attorneys must be trained in the required techniques.
Although most attorneys are adept at negotiating settlements, there are specific, unique protocols that make the Collaborative Law process successful.
Collaborative Law is a real shift in thinking for the average lawyer, and its unique process makes training a must. Even if it’s your attorney’s first Collaborative case, provided she/he is properly trained, it will work.
Look for an attorney trained in Collaborative Law protocols, one who also inspires your confidence, who is a good listener and who is going to be a good advocate for you – someone who will understand your needs, interests and goals.
Trained Collaborative lawyers have the same basic mindset
It’s possible that your spouse or partner may select a Collaborative attorney before you find one. Sometimes that attorney has had exceptionally good experiences with certain Collaborative Law colleagues and thus, may recommend them
In the Collaborative Law process, you can choose to interview a prospective attorney recommended by your partner’s attorney with more confidence. That’s because trained Collaborative lawyers share the same basic goals and mindset in every Collaborative case.
It Is The Kinder, Gentler Way.
Collaborative Law is the wave of the future.
Move on with dignity and peace.
The adversarial/trial process is designed to drive a wedge between whatever remains of the marital and/or parental relationships. This emotional expense is aggravated by the increased financial costs of pursuing a divorce in the court system.
The Collaborative way, however, is a breath of fresh air to attorneys and clients alike. When disputes arise between parties in a family context, Collaborative Law is the best way to maintain/nurture relationships, or at least to move on with your life in dignity and peace. The costs in money, other assets and emotional health are also likely to be reduced substantially.
Check our Collaborative Law Websites:
*Collaborative Lawyers of Tarrant County - www.aboutcollaborativelaw.com
*Collaborative Law Institute of Texas, www.collablawtexas.com
*International Academy of Collaborative Professionals, www.collaborativepractice.com |
