In a Collaborative Law case, the parties strive to reach a mutually acceptable, interest-based settlement through a series of meetings, sometimes called joint sessions, between the two parties and their lawyers, and sometimes other neutral experts. Ultimately, each party will judge, or him or herself, whether the terms of the agreement are “fair” to them. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs, and interests of the parties, and help them progress towards and create a settlement that is consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards. Some have critiqued this aspect of Collaborative Law (and mediation), believing that court processes are better suited towards protecting rights than voluntary dispute resolution processes. However, most lawyers involved in the divorce process agree that the parties can often make better decisions about their children and their families than a judge.
There is a parallel between Collaborative Family Law and mediation, in that both are facilitative processes. However, In Collaborative Law the parties agree from the beginning of the dispute not to go to court. Mediation is often ordered during the course of the litigation process. Further, in Collaborative Law, the parties are fully informed about the law and the consequences of various options, and their advocates facilitate the negotiations. In mediation, the mediator is a neutral third party who doesn’t represent or advise either side.
The key document in a collaborative case is the Participation Agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and lawyers agree that:
- The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original lawyers must withdraw and the parties must retain new lawyers (the “disqualification” provision);
- Neither party will take advantage of mistakes by the other side;
- The parties will freely disclose all pertinent information and will not hide any material facts;
- What is said in the settlement meetings remains confidential;
- All experts will be neutral, and hired jointly by both parties and their children; and
- Everyone will behave courteously and in good faith.
1. The disqualification provision is a key element to a collaborative case. It ensures that the lawyers’ interests are aligned with the clients’ interests in reaching a settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution because if a settlement is not reached, they are “fired” by their respective clients. Collaborative practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Collaborative Law practitioners also believe that the disqualification provision adds a necessary element of trust to the participants, thereby enhancing the likelihood of resolution. Additionally, when court is not an option, it is believed that many collaborative lawyers will retool to learn the additional skills that may be needed to resolve disputes without resorting to a third-party decision-maker.
2. This is a process of trust. As such, the agreement not to take advantage of a mistake of the other party is intended to facilitate that trust. This is based on the understanding that when children are involved there is a need for an on-going relationship between the parties. A short term advantage that a litigator may obtain from taking advantage of a technical legal mistake of the other lawyer can lead to a long term disadvantage is harboring mistrust among the parties.
3. Even in a litigated divorce, the parties must disclose information. But this can be an expensive process as attorneys and parties try to only disclose what they have to under the rules. Open disclosure merely discloses that which the parties should be required to disclose in an atmosphere of trust and efficiency that should reduce legal costs.
4. As opposed to exposing your family and finances to an open court process, collaborative law respects the privacy of the family. This is important to shield the children. In cases with no children, the fact that one’s financial information is not disclosed in an open court process is important.
5. Neutral experts are important in cases whether or not children are involved. In Litigation cases involving children, people often hire mental health experts to prove the other party wrong and subject the children to these “experts” to prove a point. In litigation financial experts are also hired to prove a point. In both instances, the parties’ sensitive information is exposed to the other side’s hired gun and to a public process. Hiring two experts is expensive. In the Collaborative Process, time and money are saved by the parties agreeing on one expert to make the best decisions for their children and their finances.
6. The concept of behaving in a courteous manner and in good faith acknowledges the relationship the parties once had. It also acknowledges that the parties will have to deal with each other again in the future if they have children, and the likelihood of future cooperation is enhanced when parties can be courteous. It also is part of the concept that the parties are working towards an amicable resolution.
Some lawyers who are not trained in the collaborative process believe that the disqualification clause is an unnecessary disadvantage because all parties are required to appoint new lawyers if the collaborative process ends without settlement. However, it is extremely rare for a collaborative case to end without settlement. Further, the parties know their respective attorneys are committed to settlement because they will be fired if the case does not settle. Otherwise, the lawyers can have a financial incentive not to settle as they can be paid quite a bit more if the case proceeds to trial.
Collaborative Family Law makes use of a team approach to help the couple make fully informed, carefully considered, settlement decisions. When appropriate, the group brings in outside consultants to help resolve the conflict. Typically, this will include, a collaboratively trained financial specialist. Financial specialists help by efficiently and thoroughly providing a financial analysis of assets, debts, and budgets for the couple, to allow the couple to make informed future plans. Some of the ways a financial expert helps are modeling alternatives for dividing the assets or retirement funds, flagging possible tax implications, and helping explore possibilities to ensure financial security for the parties. A financial specialist may also help educate a party who needs more education on finances, and who may need extra support to learn the necessary information in order to make decisions that meet that person’s needs. Other financial experts may be hired, for example, to value a couple’s business.
Where the couple has minor children, a mental health professional (generally a child or family therapist) may be brought in as a “child specialist” to educate the parents as to the developmental needs of children, and to explore ideas for parenting plans/schedules. A divorce coach (typically also a mental health professional) can also be important in a case without children. Divorce is an emotional process and having a coach can help clients more efficiently reach resolutions, and can help attorneys better facilitate. Collaborative Family Lawyers are trained to deal with legal issues, but they may not be trained to deal with the emotional aspects of divorce.
Family Consultants in the Collaborative Process
In Collaborative Family Law, the services of divorce coaches, communications coaches or in the United Kingdom, family consultants, are sometimes used in to help the participants clarify their needs, listen to the other’s needs, and stay focused throughout the negotiations, all of which substantially reduce the normal anxiety often experienced in the divorce process and helps allow the co-creation of a resolution. Depending on local protocols, there may be one or two coaches used in cases in any locality. Family Consultants are therapists or counselors with a background in supporting families who are going through a divorce or separation process. The role of the Family Consultant in the collaborative process is flexible with the advantage of being tailor-made to address individual needs, those of the couple, the parental relationship, and the wishes and hopes of the children.