COLLABORATIVE LAW

Collaborative family law is a relatively new and non-traditional way of practicing law whereby the attorneys for both of the parties in a family dispute agree to use cooperative strategies rather than adversarial techniques and litigation. The focus in collaborative law is to try to create an atmosphere of cooperation, focusing on a “win-win” outcome for all parties involved, rather than the more traditional “he vs. she” model of divorce litigation.

The emphasis in the collaborative law approach is to find a way in which the lawyers can work with the parties that will achieve a mutually beneficial resolution in an efficient, cooperative manner. This may include "four-way" settlement conferences where the parties meet with their collaborative lawyers to work on a settlement, and may very well involve experts as to issues surrounding values of assets and the best interests of the children.

One of the hallmarks of collaborative law is that your collaborative lawyer will not participate in contested court proceedings, in the event that you and your spouse cannot reach a full settlement. This way, the collaborative lawyer can focus on working together, rather preparing for an adversarial divorce proceeding in the courtroom. There are attorneys who specialize in collaborative law, and do not litigate in the courtroom.

Collaborative law may not be workable in many cases. In the collaborative law approach, the lawyers and their clients have to learn to act differently--to leave their anger and resentments at the door and come to the arena with at least some motivation to work things out in a fair and equitable fashion. In addition, full disclosure with respect to all relevant facts, including financial matters, is necessary in order for everything to be “on the table” for discussion. The parties must be able to set aside their differences and meet in the same room with their collaborative lawyers, in order to work together toward an agreement.

If the parties cannot resolve all of the issues in the divorce with the assistance of their collaborative lawyers, the parties may look into other methods of alternative dispute resolution (ADR) prior to engaging in litigation, which can become very expensive. If the parties cannot resolve the issues through ADR, the collaborative lawyers would withdraw and the parties would proceed to obtain attorneys to proceed to prepare the matter for trial. This is one of the most important drawbacks of the approach, and the reason why many experienced family law attorneys do not believe that collaborative law is in their clients’ best interests.

Essentially, if the process fails, the parties are forced to change lawyers. This creates the potential tremendous expense and emotional turmoil of switching attorneys right in the middle of a divorce. Moreover, emergency or immediate relief through the court system is not a viable option in the collaborative process, so the parties must be confident that they will be able to work through all of the issues in their case. Assistance from the courts for any reason will not be available, so the parties must be able to resolve even temporary issues quickly, such as child custody, parenting time, and financial support. Thus, it is very important that parties to a collaborative law process realize that, though the process may have some attractive aspects, there are built-in limitations to this approach.

Back to Mediation & Arbitration
Back to Emerging Trends