Dissolution of Marriage Without Adversarial Court Litigation

Collaborative Law is a method of handling dissolution of marriage and other family disputes in which the parties and the attorneys agree to resolve disputed issues without litigating in court. The attorneys use their knowledge of family law, experience as negotiators and problem solvers, and training in conflict management to assist their clients in reaching a negotiated settlement through cooperative strategies, rather than adversarial techniques and litigation. The collaborative process maximizes the possibility of a fair, equitable and less traumatic resolution.  Collaborative Law also offers a team approach where needed by including a financial specialist to assist with tax issues, budgeting, financial projections and other financial issues and a mental health child specialist to assist with child related issues such as scheduling time with each parent and a divorce coach who is another mental health professional to assist in communication issues.

How Does Collaborative Law Differ From Regular Representation?
Open and Full Disclosure

Collaborative Law requires both parties to provide full and honest disclosure of all relevant information to each other. The spouses cooperate to gather all financial and other necessary information to make decisions concerning division of assets and debts, support and parenting issues. The disclosure is done informally rather than using typical legal tools such as depositions, interrogatories and document requests. Each spouse does sign an asset and income statement under oath. A financial specialist may be part of the team.  This neutral can assist in organizing the information and analyzing financial alternatives.

Neutral Experts and Consultants

Neutral experts and consultants are retained if needed to appraise real estate and antiques and to provide business valuations or other assistance in determining a fair value of assets. Neutral accountants can be employed to trace assets and prepare financial and income projections. Child development specialists may be consulted regarding complicated, troubling or highly conflictual parenting issues. In a court-focused action, each party retains a separate expert which adds to the cost and often limits the outcome, since each expert may not have all the facts necessary to give the best advice.

Commitment to a Fair and Equitable Outcome

Collaborative Law requires each party to consider not only his or her specific needs, but also the needs and interests of the spouse and children. The techniques used and the atmosphere focused on problem solving encourages each party and attorney to take a reasoned position on all issues. The participants use their best efforts to create proposals that meet the fundamental needs of all family members and consider the value of compromise where interests conflict or differ.

In a litigated family law matter, each party typically pursues his agenda and tries to obtain the maximum benefit in the situation. This often requires exposing (and sometimes exaggerating) the weakest rather than the best attributes of his or her spouse. In a litigated case, the attorney has no duty to advise the other attorney or client of a mistake in calculation, in the law, or in valuation. In fact, the “rules” lawyers follow in that type of representation may prevent such disclosures as being against their client’s interests.

Limited Scope Representation
By entering into a Collaborative Law Participation Agreement the lawyers and their clients agree to limit the lawyers’ role to that of providing representation for settlement only. The attorney is hired to advise the client and achieve a negotiated settlement in a context of full and open disclosure where the goal is a fair and equitable resolution of all issues. This means if no agreement is reached, the attorney agrees not to represent the client in a litigated court action. Collaborative attorneys believe as much effort should be exerted toward settlement as is traditionally spent in preparing for and conducting a trial. If the attorney determines his client has been untruthful, withheld information, or in some other way undermined the agreed upon ground rules, the attorney must terminate the Collaborative Law process and withdraw as attorney for that client. In a Collaborative process, the attorney does not have and cannot use the “threat” of a court decision to resolve issues. The attorney does not benefit in any manner by helping his client take an unreasonable position. The attorney is required to advise the other spouse and his or her attorney of mistakes in law or fact.

Participation Agreement

The parties enter into a Participation Agreement in which they agree to follow the guidelines and procedures of the Collaborative Law Process.

Four Way Meeting

Collaborative Law fosters an efficient use of resources to gather information, analyze issues, and problem solve disputes. Rather than each side having his “view” of the case, all information is shared. The client has more control over and involvement in the outcome and process. By the time spouses decide to divorce, good communication and ability to compromise is often absent. The Collaborative Law attorneys are trained in conflict management and guide the negotiations. Not every spouse is emotionally ready to deal with a divorcing partner face to face. The Collaborative Law process minimizes trauma. Each spouse has a representative in the negotiations. Moreover by using a divorce coach problems in communication can be reduced and helpful techniques for ongoing communication can be developed.

Enhanced Creativity
With both attorneys concentrating their skills on problem solving and freed from the time used for court forms and requirements, the settlements achieved often include creative resolutions.

Schedule Determined by Parties

The parties determine how much time they need to gather the information. The parties and attorneys can schedule meetings at convenient times. In a litigated case many courts impose deadlines for discovery and conferences with the judge and hearing dates which are inconvenient.

Less Costly Than Litigation

The expense to prepare for and undertake a litigated resolution in lawyers fees, time lost from work, and competing experts far exceeds the costs in a resolution through the Collaborative Law process. Of course, if the process fails the client still has the option of a litigated trial.

Climate of Cooperation Reduces Stress

Collaborative Law requires each spouse and attorney to agree to work in good faith. The process tries to eliminate insensitive and/or exploitative conduct. Deadlines are agreed by the parties not mandated by the court. Every divorce is difficult for many reasons. The collaborative atmosphere is much less stressful than an adversarial litigated trial.

What happens if settlement can’t be reached?

If a settlement cannot be achieved or if one of the parties becomes adversarial or acts in a manner inconsistent with the terms of the Participation Agreement, BOTH LAWYERS MUST WITHDRAW FROM THE CASE. The lawyers will assist the parties to find new counsel to pursue their cases in court and will work to make a smooth transition for their clients.

Can a party quit during the process?

Nothing in the Participation Agreement prevents a spouse from terminating the Collaborative process and pursuing litigation. In that event both parties must obtain different lawyers.

Why must a lawyer withdraw if the other side decides to go to court?

The requirement that all lawyers are disqualified if the process breaks down guarantees that all participants will be motivated to make the process succeed. All participants are equally and fully invested in finding the solutions to the problems. More subtly, the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that the lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to, ceases to be a viable tactic.