- What is Collaborative Family Law?
- How does the Collaborative Process work?
- Is Collaborative Law right for me and my spouse?
- How do I know if it is safe for me to work in the Collaborative Practice?
- How expensive is collaborative law?
- How does the cost of Collaborative Law compare with the cost of litigation?
- Is Collaborative Practice a faster way to get a divorce?
- How is the Collaborative Law different from settlement negotiations between divorce attorneys?
- Are my spouse and I required to give financial information to each other in Collaborative Practice?
- What happens if one side or the other hides documents or is dishonest in some way, misusing the Collaborative Law process to take advantage of the other party?
- If I choose Collaborative Law, will my rights be protected and, if so how?9
- How can I get my spouse to participate?
- What happens if agreement cannot be reached and one or both parties want a conventional divorce?
- Can either of us terminate the process?
- Why must the collaborative lawyers resign if one of us decided to go to court?
- What is a "Collaborative Team?"
- What if my spouse chooses a lawyer who doesn't know about or isn't trained in collaborative law?
- Why would I choose Collaborative Practice over other options?
- What is the difference between Collaborative Practice and conventional divorce?
- There is a lot of anger between us right now. Is Collaborative Practice only for "amicable" divorces or separations?
- Will Collaborative Law replace the traditional litigation process?
- I am interested in getting trained in Collaborative Law, how can I learn more?
- How do I find an attorney trained in Collaborative Law?
What is Collaborative Family Law?
Collaborative Family Law is a problem-solving process that gives divorcing parties and their lawyers a way to end a marriage and restructure families without the stress, delay, and expense of litigation.
Collaborative family law is founded on three principles:
- a pledge not to litigate disputes in court
- an honest, voluntary, prompt, and good-faith exchange of relevant information without formal discovery
- a commitment to strive for solutions that take into account the highest priorities of both parties and their children.
Although the lawyers share a commitment to collaborative law principles, each lawyer has a professional duty to represent his or her own client diligently, and is not the attorney for the other party.
How does the Collaborative Process work?
When a couple decides to pursue a collaborative divorce without going to court, they each hire lawyers trained in collaborative law. Collaborative lawyers and their clients sit together in face-to-face meetings to identify and address issues in need of resolution. The lawyers focus the clients on problem-solving and making plans for the future, rather than on casting blame or making accusations for what may have happened in the past.
In Collaborative Law, the parties and their lawyers all agree that should the negotiations fall apart and the parties wish to proceed to court - they will do so with new lawyers. Additionally, each collaborative lawyer is required to withdraw upon becoming aware that his or her client is being less than fully honest, or is participating in the process in bad faith. Since all meetings with the collaborative team are confidential, discussions, disclosures or any concessions that may have been made during the four-way conferences cannot be used against either party in any subsequent court proceeding.
Because ending a marriage has emotional and economic consequences, as well as legal consequences, the parties may have trouble communicating and making decisions without the help of other professionals in addition to their lawyers. That is why collaborative lawyers often rely on an interdisciplinary team approach. This means that the parties may jointly hire personal coaches (generally a mental health professional), child specialists, and financial experts to assist in gathering information and problem-solving. The professionals working as part of the collaborative team share the belief that is in the parties and their families best interests to avoid litigation, and to settle differences fairly, honestly, and efficiently.
Is Collaborative Law right for me and my spouse?
The collaborative process is for couples who want a respectful end to their marriage for the sake of all family members. Ultimately, you must be the judge of the other person's honesty and integrity, as well as be responsible for your own. If the following things are important to you, Collaborative Law could be the best process for you.
- You seek a respectful, creative and individual process for ending your marriage.
- You want to retain control over the decisions that will effect your lives during and after your divorce.
- You recognize the potential importance of future relationships even after divorce.
- You believe it is important to protect children from the harm that parental conflict can inflict.
- You place a high value on personal responsibility for managing conflict with integrity.
The Collaborative Family Law Center is unable to provide services if you are unable to locate your spouse or if you are unable or unwilling to sit at a table with your spouse to discuss difficult issues or in cases involving domestic violence or child abuse.
How do I know if it is safe for me to work in the Collaborative Practice?
In the collaborative process, both clients must agree to communicate in a respectful manner. However, oftentimes there are issues of power imbalance or even abuse between people seeking to end their marriage or partnership. While personal coaches can be brought in to help couples struggling to communicate effectively, the collaborative process cannot work when even one of the parties is in fear of or under the control of another. That is why the Collaborative Family Law Center will not refer cases involving domestic violence to collaborative law.
How expensive is collaborative law?
Collaborative lawyers generally charge by the hour as do conventional family lawyers. Rates vary from locale to locale and according to the experience of the lawyer. No one can predict exactly what you will pay for this kind of representation because every case is different. Your issues may be simple or complex; you and your partner may have already reached agreement on most, or none, of your issues. You may be very precise or very casual in your approach to problems. You and your partner may be at very different emotional stages in coming to terms with separating from one another. While the cost of your own fees cannot be predicted accurately, a rule of thumb is that collaborative law representation will cost from one tenth to one twentieth as much as being represented conventionally by a lawyer who takes issues in your case to court.
How does the cost of Collaborative Law compare with the cost of litigation?
Litigation is often the most expensive way of resolving a dispute. It is common for litigated divorces to begin with a motion for temporary support. The result is exactly that—a temporary order, not any final resolution of any issues. It is not uncommon for a single temporary support motion to cost as much or more in lawyers’ fees and costs as it costs for an entire collaborative law representation.
Is Collaborative Practice a faster way to get a divorce?
Individual circumstances determine how quickly any divorce process proceeds. However, Collaborative Practice can be a more direct and efficient form of divorce. From the start, it focuses on problem solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court appointments that may be necessary with conventional divorce.
How is the Collaborative Law different from settlement negotiations between divorce attorneys?
- In Collaborative Law, all participate in an open, honest exchange of information. Neither party takes advantage of the miscalculations or mistakes of the others, but instead identifies and corrects them.
- In Collaborative Law, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process.
- Both parties in Collaborative Law use joint accountants, mental health consultants, appraisers, and other consultants, instead of adversarial experts.
- In Collaborative Law, a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.
- In Collaborative Law, lawyers must guide the process to settlement or withdraw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or is tried. Because of the withdrawal possibility, the interests of attorneys and their clients are aligned in favor of settlement.
- In Collaborative Law, there is parity of payment to each lawyer so that neither party’s representation is disadvantaged vis-à-vis the other by lack of funds, a frequent problem in adversarial litigation.
Most conventional family law cases settle figuratively, if not literally, “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do. Nothing could be more different from what happens in a typical collaborative law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.
Are my spouse and I required to give financial information to each other in Collaborative Practice?
Yes. Both parties will be required to fill out a financial disclosure form and to provide statements to confirm amounts in accounts. Although no one can give you an absolute guarantee that every asset or every bit of income will be disclosed, in the collaborative process both parties sign a binding agreement to disclose all documents and information that relate to the issues – early, fully, and voluntarily. If a collaborative lawyer learns that the client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the lawyer to withdraw if the client refuses to authorize the correction.
What happens if one side or the other hides documents or is dishonest in some way, misusing the Collaborative Law process to take advantage of the other party?
This could happen. It also can and does happen in conventional legal representation. What is different about Collaborative Law is that the collaborative law agreement requires the lawyer to withdraw if the client is being less than fully honest, or is participating in the process with less than good faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw, discontinuing representation of the client.
If I choose Collaborative Law, will my rights be protected and, if so how?
In a collaborative law process, each party's attorney has an absolute duty to represent solely his or her client's interests. The collaborative law process does not mean that an attorney can or should be anything less than 100% on the side of his or her client. What is unique about collaborative law, however, is that the collaborative lawyer takes responsibility for advancing the client's interest in settlement (as well as other interests), and therefore zealous advocacy in a collaborative negotiation is focused on finding a mutually agreeable solution.
How can I get my spouse to participate?
Talk with your spouse about the benefits you see in using the collaborative process. Give your spouse this web site address, or print out these FAQs. Encourage your spouse to Find a Collaborative Lawyer. If it is difficult to talk to your spouse or partner, you might enlist the help of your clergy person, a psychologist/therapist, or a mutual friend to talk about Collaborative Practice.
What happens if agreement cannot be reached and one or both parties want a conventional divorce?
The spouses and attorneys are bound by a written pledge not to go to court over any contested issue. If agreement can't be reached, Collaborative Law attorneys may suggest bringing in mediators or other professionals to facilitate a settlement. However, if one or both parties wish to discontinue the collaborative process, both attorneys are legally obligated to withdraw from representing their clients. This means that both spouses have an incentive to settle their case collaboratively in order to avoid having to hire new attorneys and begin a traditional divorce process through the court system, adding time and expense to the divorce.
Can either of us terminate the process?
Yes. Either client can always choose to end the collaborative process and go to court. However, if the collaborative process terminates, both clients will be required to hire new lawyers.
Why must the collaborative lawyers resign if one of us decided to go to court?
Requiring the collaborative lawyers to resign if one party terminates the process protects the confidentiality of the collaborative meetings. The requirement that the collaborative lawyers be disqualified in the event of a breakdown also guarantees that all participating lawyers will be totally and exclusively motivated to have the process succeed. This way, all participants are equally and fully invested in finding the solutions to all problems. In addition, it is believed that 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, mutual trust, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success.
What is a "Collaborative Team?"
The premise of the "collaborative team" is that parties and their chosen professionals act as a problem-solving team rather than as adversaries. A collaborative team can be any combination of professionals that the parties choose to work with to resolve their dispute. It can be just the parties and their collaborative lawyers, which in all cases comprise the Collaborative Law component of Collaborative Practice. It can be the parties, their collaborative attorneys and a financial professional or a child care specialist. It can be the parties and divorce coaches, working as a team either before or after the collaborative attorneys are chosen and the legal process begins.
What if my spouse chooses a lawyer who doesn't know about or isn't trained in collaborative law?
Collaborative lawyers have different views about this. Some will “sign on” to a collaborative representation with any lawyer who is willing to give it a try. Others believe that is unwise and will not do that.
Trust between the lawyers is essential for the collaborative law process to work at its best. Unless the lawyers can rely on one another’s representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. If your lawyer lacks confidence that the other lawyer will withdraw from representing a dishonest client, it might be unwise to sign on to a formal collaborative law process (involving disqualification of both lawyers from representation in court if the collaborative law process fails).
Similarly, collaborative law demands special skills from the lawyers—skills in guiding negotiations and in managing conflict. Lawyers need to study and practice to learn these new skills, which are quite different from the skills offered by conventional adversarial lawyers. Without them, a lawyer would have a hard time working effectively in a collaborative law negotiation.
And some lawyers might even collude with their clients to misuse the collaborative law process, for delay, or to get an unfair edge in negotiations. For these reasons, some lawyers hesitate to sign on to a formal collaborative law representation with a lawyer inexperienced in this model. That doesn’t mean your lawyer could not work cordially or cooperatively with that lawyer, but caution is advised in signing the formal agreements that are the heart of collaborative law where there is no track record of mutual trust between the lawyers. You and your spouse will get the best results by retaining two lawyers who both can show that they have committed to learning how to practice collaborative law by obtaining training as well as experience in this new way of helping clients through divorce.
Why would I choose Collaborative Practice over other options?
Collaborative Practice or Do-it-Yourself: There are many legal aspects that you may not be aware of involved in divorcing, separating or even working out parenting arrangements. There is always a risk to negotiating issues that have legal implications without a good understanding of the applicable law. Even if you “work things out” and then take your agreement to a lawyer to “file the paperwork,” there may be significant issues that you did not address, or that have been resolved in a one-sided way. If there is a power disparity in the relationship, one party may be at a disadvantage right from the beginning. You may not know what information to ask “the other side” to provide, potentially resulting in decisions made on incomplete information, which may then lead to further disputes. You may not fully understand your legal rights, and may unknowingly give up important legal rights. While this may be the least expensive option, it runs the risk of resulting in an incomplete and potentially unfair resolution.
In the Collaborative process, each party is represented by his or her own attorney. The attorneys make sure that all the necessary issues are addressed, and all necessary information is obtained, with the final decisions being made by the clients. The clients have the benefit of their attorneys’ help and advice while maintaining their ability to set the pace and goals of the process. If there are questions that require the help of other professionals, such as financial specialists, mental health professionals or child specialists, these experts can be brought in to work for the clients. The collaborative lawyers will file the necessary documents with the court at the end of the process with the clients’ consent.
Collaborative Practice or Mediation:
single neutral person, who may be a lawyer, a mental health professional, or simply someone with an interest in mediation, acts as the mediator for and with the couple. The mediator helps the couple reach agreement, but does not give individual legal advice, and may or may not prepare the divorce agreement. Very few mediators will process the divorce itself through the court system. You would have to do that yourself or hire a lawyer to do it. Retaining your own lawyer to give you independent legal advice throughout a mediation is wise, and most good mediators recommend this. Waiting to secure independent legal advice until late in a mediation often causes difficulties. It is generally better for both spouses to have that legal advice available from the start. In some locales the two lawyers (yours and your spouse’s) sit in on the mediation process, and in other locales they remain outside the mediation process and meet privately with their own client to give their legal advice. Either way, in a mediation, you and your partner should expect to negotiate face to face, directly, with the mediator’s assistance. The two lawyers ordinarily do not take an active role in a mediation. While mediation can work very well for motivated couples with emotional maturity and a shared desire to reach agreement, it can be challenging for many people to negotiate in this way, face to face with a partner during the turmoil of ending an intimate relationship—especially where emotions run high or where communications are difficult.
Collaborative Practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to cooperation and settlement as mediation.18 It is the job of the collaborative lawyers to work with their own clients and one another to assure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by both the lawyers and the clients, until both clients are satisfied with the document.
Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals. If mediation does not result in a settlement, the parties may choose to use their attorneys in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. Consulting experts used during mediation are not typically required to sign a contract limiting their work to the context of the mediation, and therefore they are not restricted from participating in litigation if the parties go to court.
In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically provides that the collaborative lawyers and any consulting experts will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached.
What is the difference between Collaborative Practice and conventional divorce?
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These steps often result in a settlement achieved with the court’s involvement. Even though the parties ultimately settle, as the spouses go through this process, they often come to view each other as adversaries, and their divorce as a battleground. The conflict that the process breeds often harms the parties’ children.
Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
There is a lot of anger between us right now. Is Collaborative Practice only for "amicable" divorces or separations?
Not at all. Anger is a natural response to the disruption of our primary relationships in life. We know that it is not easy to detach from a primary emotional relationship. This is true even if we are unhappy in that relationship. In Collaborative Practice, clients receive support and guidance to better understand and manage the delicate process of detachment, including the strong feelings—such as grief and anger—that often accompany it. Where emotions are running high and there is conflict between you, the collaborative process won’t suppress or deny it, but the process can offer both of you effective support by giving you a place to deal with that conflict as you work through your issues.
Will Collaborative Law replace the traditional litigation process?
No. Collaborative Law is not intended to replace the litigation process. Collaborative Law is an alternative to litigation for people to consider in resolving their disputes. The judicial system and the litigation process are essential to a lawful society. However, in some situations people, with the help of their attorneys, are able to resolve their own disputes without resorting to adversarial litigation.
I am interested in getting trained in Collaborative Law, how can I learn more?
If you are an attorney practicing in New York City, visit the Upcoming Events section of this website to learn about upcoming training opportunities in the New York City area for eligible professionals. For attorneys or affiliated professionals outside New York City, visit the web site for the International Academy of Collaborative Professionals at http://www.collaborativepractice.com to learn about upcoming training opportunities in your area.
How do I find an attorney trained in Collaborative Law?
Click on Find a Collaborative Lawyer.
Adapted from the website of the International Academy of Collaborative Professionals, http://www.collaborativepractice.com/, and the websites of member organizations engaged in Collaborative Practice.