Collaborative Law: A Foundation

I have been fortunate to work on a variety of matters in my career, but I focus my practice on Collaborative Law and Mediation. I find myself mentioning collaborative law in other blogs I post, and while I give quick definitions here and there, I felt it was important to provide a better foundation of what collaborative law actually is.

Collaborative practice is a process used to resolve family and other disputes respectfully and equitably without going to court. This is one of the most important elements I am often clarifying to people. Matters can sometimes have the potential of a long and drawn-out court battle which can cause tension and hostility. With collaborative law, the emphasis is on respect and open lines of communication while allowing the parties to control the outcome. Litigation, on the other hand, relies on a judge’s decision.

When using collaborative law for your family law issue, each party retains his or her own attorney who has been specially trained in the collaborative law process to advise and assist in negotiating an agreement. The negotiations take place out of court in a series of meetings. I sometimes refer to a collaborative team, which includes other professionals working on behalf of the clients throughout the process. These professionals may include divorce coaches, a neutral financial specialist, and a child specialist. Cooperative strategies are used with settlement as the only option from the beginning of the case. The goal is to help individuals to focus on what is most important to them.

Because the lawyers are committed to settlement, there is no threat of litigation which means that some of the hostility people may feel from the litigation process is not present in the collaborative process. Further, if the clients still decide to go to court, the lawyers from the collaborative process are disqualified.

A common misconception is that collaborative practice and mediation are the same thing. While there are some overlapping elements, the two processes are distinctly different. In meditation, the parties voluntarily work with a neutral third party (who may or may not be an attorney) who facilitates communication in order for an agreement to be reached. Mediation, like collaborative practice, has the goal of reaching agreement by focusing on open communication. However, while parties may consult with an attorney prior to or during the mediation process, it is usually done outside of the process.

In collaborative practice, parties still retain their own attorney who is working towards an optimal agreement that suits the needs of the couple and of the entire family. The idea is to look for win-win solutions that maintain family ties and minimize emotional impact. There is full disclosure of all information necessary to make well-reasoned decisions. Many people tend to choose collaborative practice because of its practicality and its emphasis on reaching agreement.