Litigation is the traditional divorce process when both parties hire lawyers to provide legal advice and represent the positions of their clients in negotiations and court hearings. By its very nature, litigation is an adversarial process because each advocates positions based on their respective clients’ often competing expressed desires and opinions. Communication is primarily through the lawyers rather than each other, with the lawyers making proposals, counter-proposals, defending the position taken, usually in writing with letters going back and forth. The process may involve the use of formal legal procedures, known as discovery, to secure financial and other relevant information. Discovery may include the use of questioning (giving evidence under oath before a court reporter) and the formal demand to produce documents that may be relevant to the proceedings. Each party may hire experts to give an opinion. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.
If the parties dispute the best parenting arrangements for the children – custody, access, who the children should live with – a lawyer is sometimes retained to act for the children independent of the parties and their lawyers.
Most litigated divorces are eventually settled, but often only after substantial time and money has been spent in the midst of conflict. Further, both parties often find they are dissatisfied with the outcome and are likely to return to court to change the settlement or resolve ongoing disputes.
By contrast, Collaborative Lawyers play an active and direct advocacy role in all stages of the settlement process. Each functions as an educator, advisor and advocate for the client and assists the client in developing their interests, communicating their interests effectively, understanding information and legal analyses, brainstorming options and communicating during negotiations. The presence of the lawyers serves to level the inequities of knowledge, power and communication ability inherent in many relationships.
In contrast to the lawyers’ role in the litigation model, Collaborative lawyers function as settlement specialists rather than adversarial advocates. The process requires both parties and their lawyers to actively listen and understand the other’s interests, needs, and goals in order to work together to come to an agreement that they are both satisfied with.
Divorce is one of the most emotionally and financially stressful events that occurs in a person’s life. Traditional litigation only adds to these stresses – the parties are adversarial, conflicts can escalate, trips to the courthouse add up, and so do high legal fees and other costs. Traditional legal battles can permanently destroy any chance of cooperative parenting between the parties.
Despite the contested nature of traditional litigation the majority of cases are resolved without having a judge make the decisions, sometimes on the eve of the trial. But, going before the court to ask the judge to decide requires expensive preparation and great stress. Further, clients who are dissatisfied with the settlements often will return to court later, especially if there are children involved, which means continued legal expense and stress.
The Collaborative Law Process is readily applicable to most family law issues, not just divorce, but also the termination of common law relationships.
Collaborative Family Law offers many benefits for clients including:
Depending upon the needs of the family, the Collaborative Divorce Team generally consists of professionals from three separate disciplines: legal, mental health and financial. The professionals work together by providing their respective expertise to help families through their family law matter.
Professionals on the team all subscribe to the core principles of and are formally trained in the Collaborative Process. None of the team members can be involved in any contested court hearing, and all hired professionals will withdraw from the case if it does result in a contested court hearing.
The Collaborative Divorce Team may include collaborative coaches, child specialists, and financial specialists in addition to the lawyers.
No process can guarantee absolute honesty or prevent a person from hiding assets or lying under oath. In the Collaborative Process, each party commits in writing to a full and voluntary disclosure of all assets and income. Entering in to voluntary disclosure avoids expensive formal processes such as questioning or notice to produce documents. Ultimately, each party can be asked to sign a sworn statement of income, assets, and liabilities. If you believe your partner will tell the truth under oath, the Collaborative Process may be a good choice for you.
Your lawyer is your advocate in the Collaborative Process. However, that advocacy is different from the lawyer’s role in a litigated case. In a Collaborative situation, your lawyer strives to negotiate and achieve your goals in a respectful and cooperative manner.
In both private and four-way meetings your lawyer focuses on educating, advising and assisting you to understand the legal issues and options for settlement. Your lawyer is committed to protecting your reasonable settlement goals while preserving your interest in reaching an outcome that is best for you and your family.
It’s true that about 90% of all family law cases reach an agreement before a trial. However, if you choose the most traditional way to handle a family law matter, which is litigation, you are entering into an adversarial process. That means your lawyer and your partner’s lawyer advocate your positions based on your and your partner’s personal wants, needs and viewpoints.
Rather than communicating directly with one another, you and your partner communicate primarily through your lawyers through proposals, counterproposals, and ultimatums. Even though your lawyers may be civil and cooperative, the ability to reach a resolution for your family is often limited by formulas, statutes, rules of thumb, war stories, and the threat of litigation. Too often such settlements are reached at the last minute, literally or figuratively on the courthouse steps. It’s stressful and usually expensive.
Settlement negotiations in Collaborative Divorce seek to identify and find outcomes that meet the needs and objectives of both parents and their children. You and your lawyer, and your partner and his or her lawyer, commit to actively listening to each other and understanding each party’s interests, needs and goals. The process itself supports the parties in working together and communicating directly to find common ground and solutions. You and your partner retain control in a process focused on education, creative problem solving and long-term solutions.
Both these models – traditionally litigated cases and the Collaborative Process – generally lead to a settlement. It is up to you to choose the path to that settlement.
Then you and your partner can explore other options for settlement such as mediation, which may allow you to stay within the collaborative process. If either of you decide to “fight it out in court”, the Collaborative Lawyers, and any other team members involved, must withdraw and each party retains a new lawyer for the court hearings. The Collaborative Lawyer transfers the information gathered and assists the trial lawyer in the transition.
Each lawyer in the collaborative situation has signed a written agreement, as you and your partner have, to avoid participation in litigation. Because of this agreement and their commitment to the Collaborative Process, the lawyers have incentive to stay focused on assisting their clients to reach a fully informed and mutually-acceptable settlement. This way, all participants are equally invested in finding the solutions to the issues at hand. Lawyers advise, advocate and assist in negotiations differently when the threat of litigation no longer exists; openness, trust and cooperation replace secrecy, manipulation and threats of litigation.
Discuss what you have learned about the Collaborative Process with your spouse or partner. Encourage him or her to review this website and to meet with a Collaborative Lawyer in your area to learn more about the Process. In addition, you could meet with a Collaborative Lawyer who may be willing to provide additional information for you to share.
For the Collaborative Process to work, it’s essential that each party’s lawyer understands and is committed to the principles of collaboration and has signed a participation agreement.
The Collaborative approach demands special skills from the lawyers – skills in guiding negotiations and in managing conflict. A lawyer who doesn’t practice Collaborative Law often can work cooperatively with a lawyer who does, but then your case is not considered to be the Collaborative Process, and the threat of litigation remains.
It can be. The Collaborative Process is designed to be more efficient with four-way meetings among the parties and their lawyers, focused on facilitating a settlement. Collaborative Divorce eliminates the multiple court appearances and conflicts that are often part of a traditional divorce, thereby reducing the emotional and financial costs. Collaborative Divorce eliminates the need for multiple experts to prepare documents and exhibits for use in court, or to conduct discoveries and issue subpoenas.
The cost of a Collaborative Family Law case is directly related to the pace at which you and your spouse are able to reach an agreement on all issues. Your Collaborative Family Law Professional is the best source of information about fees.
It’s commendable of you to want to reach a resolution without a court battle. Collaborative Lawyers can help you to avoid a battle by educating and advising you in reaching fully informed agreements; they avoid creating disagreements where there are none.
Even couples who want a peaceful divorce often find themselves struggling – not necessarily fighting – about issues like the long-term effects of decisions about children, allocation of income, and division of assets. Collaborative Professionals can guide you through those discussions and help you more efficiently reach resolution. Using the services of a Collaborative Lawyer also may reduce the likelihood of returning to court because your initial do-it-yourself agreement was incomplete, or created unintended consequences.
Yes. Even though an action already may have been filed, you and your spouse may begin the Collaborative Process by signing the participation Agreement, and agreeing to take no further steps in the court process. Contact a Collaborative Lawyer in order to fully discuss your options.
It depends. Collaborative Divorce is not for everyone. It may not be appropriate in cases involving extreme domestic violence or extreme mental illness. Contact a Collaborative Lawyer to discuss your specific concerns.