- What is collaborative practice?
- Isn't collaborative practice the same as mediation?
- Do collaborative attorneys still zealously advocate for their clients?
- What kind of information will be exchanged?
- Why might one choose the collaborative process over mediation?
- Many lawyers claim to settle most of their cases. How is collaborative practice different from what we do in our conventional practice?
- What guarantees are there that every asset will be discovered in the collaborative process?
- Is a collaborative divorce cheaper than a traditional divorce? Similarly, is this a faster process?
- For whom is collaborative divorce the proper process choice?
- Is collaborative divorce a process in which we attorneys wish to practice?
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Collaborative practice is a model for dispute resolution in which separated and divorcing couples, each represented by independent, specially trained attorneys, creatively reach agreement on all relevant issues without going to court and without threatening to do so. Collaborative family practice is a team approach often involving mental health professionals ("divorce coaches" and "child specialists"), and financial specialists all of whom agree to use neutral, rather than partisan appraisers. A primary goal of the collaborative model is to avoid the acrimony and trauma of subjecting children to court-appointed forensics and emotionally damaging litigation.
No. The dynamic in mediation is entirely different from collaborative practice. While collaborative practitioners are trained in meditative techniques, it is very rare that clients in mediation have their advocates in the room with their mediators. Mediators are neutral and typically do not give legal “advice”. The mediator represents neither party, yet the parties are often encouraged to seek legal advice from independent attorneys. In the collaborative process, clients attend a series of meetings accompanied by their attorneys; by their coaches; and/or by any other member of the collaborative team. The goal of the process is to create a global settlement in writing that meets the needs of the children and of the parents; a resolution acceptable to both spouses.
Absolutely. Any good attorney knows that a negotiated settlement must work for both parties. Indeed, both parties must feel that they have “gotten” something (even if not everything) they needed. The role of the collaborative professional is to evoke the true needs and understand each party’s deepest concerns, helping a couple to develop resolutions that fall within a “range of reasonably acceptable options.” Our goal as attorneys is to “zealously” advocate. We can all learn to “zealously advocate” without being adversarial. Zealous advocacy does not mean the other client leaves the process with nothing, but rather that our own client feels satisfied with his or her result.
With the exception of depositions under oath (which is not completely taboo), ALL documents and information typically exchanged in the traditional court based process is produced voluntarily. Sworn Statements of Net Worth are the norm; businesses, licenses, degrees, pensions, real estate and all other property is valued by neutral appraisers, specifically trained in the collaborative model. It is not uncommon for “ranges” in values to be established so that clients themselves can customize appropriate resolutions.
Some people, for various reasons, are uncomfortable negotiating against his or her spouse without help. In the collaborative process, that help is right there; in the room; with the client; every step of the way. While a mediator may provide some legal information, he or she does not advise either client. In a collaborative four way settlement meeting it is common for both clients and for both attorneys to brainstorm as many options as possible. Once all of the options for each of the issues have been discussed, parties are typically in a better position to engage in a productive “give and take” in reaching an agreement, acceptable to both.
Many lawyers claim to settle most of their cases. How is collaborative practice different from what we do in our conventional practice?
There is a big difference between a settlement that is negotiated during the conventional litigation process and one that takes place in the context of a process that prohibits court involvement or even the threat of court. Most conventional family law matters settle figuratively, if not literally, “on the courthouse steps” (fewer than five percent of litigated cases actually ever get adjudicated in a court of law). By that time, a great deal of money has been spent and emotional damage caused. The process is, for the most part driven by mutual coercion and fear which is why so many settlements occur just prior to trial. The settlements are often reached under conditions of considerable tension and anxiety.
In contrast, the collaborative process is geared from the very beginning to make it possible for creative, respectful collective problem solving to occur. It is often quicker, often less costly, more individualized, less stressful, and almost invariably more satisfying. At its best, it is a process driven by mutual understanding.
None, but what guarantees are there that every asset and all income will be disclosed in the conventional litigation process? A dishonest person who works hard to conceal money can sometimes succeed because the time and expense to investigate concealed assets can be high and the results uncertain. If a spouse is dishonest and succeeds in reaching an agreement (a legal contract) by fraudulently failing to disclose or making material misrepresentations, there are legal consequences with which we are all familiar.
Collaborative practice may not be for everyone. It is not always cheaper; it is not always quicker. The ultimate agreement however, is almost always better. Divorcing couples learn new ways to communicate in a manner that allows them to be better parents, better role models and often friends. The result is happier, more well-grounded children in healthier reconstructed families. Collaborative practice has transformed the way families resolve conflict.
While there are no guarantees, the collaborative divorce does avoid the often wasteful and unnecessary hours of waiting in the halls of the courthouse while many other cases are called; there are virtually no self-serving letters, no wasteful, formal discovery and no motions, Orders to Show Cause or provocative pleadings. Since the clients determine the frequency and timing of meetings, the pace is set by them and not by a Judge handling hundreds of other matters. Obviously, cases with fewer issues take less time and cost less to complete. Even more complex cases, which will typically take more time and cost more money, are handled more efficiently than the traditional, court based model.
Collaborative practice ensures the best possible chance for:
- Couples who are seeking to reconfigure their families in a way that protects children, offering their children the best chance to experience the benefits of BOTH parents in an environment of mutual respect and support
- Better communication between ex-spouses and an opportunity to effectively co-parent
- A civil, rational result
- An agreement that gives BOTH spouses as much as possible without hurting the other
- Protection from the emotional and psychological damage to children and to each other often caused by animus and protracted litigation
Collaborative practice is NOT a process for people destined to destroy their families (I have not met one client for whom this is a stated goal) and it most certainly is not for spouses seeking to punish and/or obtain revenge.
As a litigator for almost 20 years, I will say that reaching an agreement is much more difficult and requires much more patience than litigation. Leaving the decisions to a trial judge is much easier. Why do we bother arguing our clients’ positions to opposing counsel paid by the spouse to reject anything we propose? Surely any point we make or any offer of compromise will be viewed with a jaundiced eye or perceived as somehow damaging to the other client. By the end of a case, the judge (or in so many cases, the series of judges) is frustrated; the clients are further apart than they’ve ever been; the lawyers are disappointed, offended, frustrated and often angry at the other lawyers, and most disconcerting, our own clients blame the ridiculous fees, wasted time, acrimony and severed family relationships on us, the lawyers. But wait, weren’t we just advocating their stated positions? Weren't we just doing our jobs? Welcome to the world of matrimonial litigation.
Imagine a world of respectful settlement meetings; mutual attempts to understand what is happening to, with and for each client. Imagine creative discussions eliciting multiple options from which to choose…brainstorming as a team until something “feels right” to the couple. Imagine writing an agreement with the other attorney and members of the team that need not be revised multiple times because it was originally written so one-sidedly? Imagine clients thanking you AND thanking the other attorney for their hard work, patience and professionalism. Imagine clients one and two years later who may need help asking for another meeting or two because post-judgment litigation is not even a thought in their minds. Imagine working hard to find a solution that works for both clients.
Is collaborative practice for you? Collaborative practice is not easy. It is not cheap. It is not magic. But as my late father told me when I was 13 years old, anything worthwhile takes great effort. I am proud of the work I am doing and fortunate enough to be doing it with thousands of professionals internationally who are all setting the bar for excellence, collegiality, and success very high.