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How Is Collaborative Practice Different From Traditional Legal Methods?
Collaborative Practice requires that spouses and attorneys sign legal agreements that prohibit court involvement. Without the threat of extensive courtroom battles, the parties are able to work harder towards creative and mutually satisfying solutions, fully aware of all their legal rights, and to avoid the inevitable acrimony of litigation.
It’s important to note that fewer than 5% of divorce cases are adjudicated in a court of law. Litigating parties often settle on the eve of trial, unwilling to risk an adverse judgment. By the time settlement is reached, however, considerable expense has been already incurred and irreversible emotional damage has been caused. The litigation process is, for the most part, driven by mutual coercion and fear, which is why so many settlements occur just prior to trial. These settlements are often reached under duress and anxiety.
By avoiding all this bad feeling and waste of time and money, Collaborative Practice is intended – from the very beginning – to make it possible for clients to fully participate in the mutually respectful and beneficial problem-solving process. This process can result in a less stressful and more individualized outcome. It is a process driven by mutual understanding and cooperation.
What kind of information will be exchanged?
Except for depositions under oath, all documents and information typically exchanged in the traditional court-based process are produced voluntarily during the Collaborative Process. Sworn statements of net worth are the norm; businesses, licenses, degrees, pensions, real estate and all other property are valued by neutral appraisers specifically trained in the Collaborative model. It is common for ranges in values to be established so that clients themselves can customize appropriate resolutions.
What guarantees are there that every asset will be discovered in the Collaborative Process?
None. But what guarantees are there that every asset and all income will be disclosed in a conventional litigation process? A party concealing assets can sometimes succeed because the time and expense to investigate hidden property and other valuables can be high, with uncertain results. 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 significant legal consequences.
Is a Collaborative Divorce cheaper than a traditional divorce? Is it a faster process?
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 collaboratively than in the traditional, court-based model.
Why might one choose Collaborative Practice over mediation?
Some people, for various reasons, are uncomfortable negotiating with 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 represent 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 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.
Is Collaborative Divorce a process in which we attorneys wish to practice?
As litigators with decades of experience, our attorneys know that reaching a collaborative agreement can be difficult. Success requires patience, creativity as well as fine listening and negotiating skills. Kramer Kozek attorneys pride themselves on these skills. For some other lawyers, however, it’s just easier to leave the decisions to a trial judge.
In the long run, we believe that a good Collaborative Process can be more successful for clients. Parties most often finish the Collaborative Process feeling respected, empowered and with their needs addressed. In contrast, by the end of a litigated case, the judge (or in some cases, the series of judges) is frustrated and the clients are further apart than they’ve ever been. Clients are often disillusioned and blame the high fees, prolonged process time, acrimony and severed family relationships on a faulty legal system. Welcome to the world of matrimonial litigation.
Imagine instead respectful settlement meetings and 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 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. That’s a good Collaborative Process.
Is Collaborative Practice For You?
Collaborative Practice is not easy. It is not cheap. It is not magic. Anything worthwhile takes great effort and at Kramer Kozek LLP, we are proud of this work that we continue to pioneer. Along with many Collaborative Professionals worldwide. We are setting the gold standard for excellence, collegiality and success in Collaborative Practice.