Answers to Frequently-Asked Questions about Collaborative Family Law

Q. What is Collaborative Law?  

Q. How does Collaborative Law differ from other methods of dispute resolution? 

A. In the traditional legal approach, both parties retain attorneys whose focus is to prepare a picture of "reality" which will result in the best decision for their client by a judge. Often, this method includes denigrating the other party or his/her perception of reality. Trial is often compared to a battle, in which the best side "wins." In some circumstances, litigation is the only option. For example, if the other party consistently hides information or is abusive, the formal procedures utilized in litigation may be the tools necessary to obtain an acceptable solution.

   In mediation, a neutral professional assists the parties settle the dispute. Generally, the parties agree that all information will be shared and that they are seeking a "win-win" solution. The mediator does not represent either party and the parties do not go to court. Typically, the mediation does not include attorneys except in a consulting or reviewing capacity. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who are sophisticated enough to understand the information being provided.

Q. What are the differences between the other methods of dispute resolution and Collaborative Law?

A. Collaborative Law combines the positive qualities of litigation and mediation. Just as in litigation, each party has an independent attorney who will give them quality legal advice and will advocate for their needs. Drawing from mediation, the parties and attorneys commit to an open information gathering process and a commitment to settle without going to court.

Q. How is information gathered in Collaborative Law?

A. The parties do not engage in expensive legal procedures to obtain information. The parties and attorneys agree from the beginning that they will produce all necessary information and documents voluntarily and in a timely fashion. Hiding documents or unnecessarily delays are not permitted. If a party is not acting in good faith and "hides the ball", it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues.

Q. How do the parties and attorneys work together?

A. After the initial meetings with their own attorneys, the typical process is to start the case with a 4-way conference - the parties and attorneys meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. The 4-way conferences continue to be utilized to exchange and clarify information and to brainstorm possible options for resolution. The attorneys work together and with their clients to plan each meeting. The parties and attorneys focus on educating everyone regarding the underlying information, each party's interests and possible solutions. Out of this process, a settlement which meets the approval of both parties can be fashioned.

Q. Does it work to have everyone together in the same room in the middle of a divorce?

A. The job of the collaborative attorneys is to set the tone for positive communication. Spouses in a divorce are often feeling vulnerable and emotional and can be unaware of how their pattern of communication can cause problems. The attorneys help each client to present his or her interests and needs in a positive manner that will be heard by the other spouse. Meeting together can help everyone to be "on the same page," which ultimately facilitates reaching an agreement.

The four-way meetings can also serve as a model for the parties to be able to work together after their divorce. The focus of the meetings is on finding a solution, not attacking each other.

Q. Must an agreement be reached in Collaborative Law?

A. No. Both parties must agree to the solution. Neither party is forced to accept a solution that does not meet his or her interests and needs. Both parties understand that the goal is to fashion a solution that comes as close as possible to satisfying everyoneís interests, while recognizing that they wonít receive everything on their wish list.

Q. If the parties reach an agreement through Collaborative Law, what happens next?

A. The attorneys will draft the necessary legal documents and pleadings to memorialize the partiesí agreement. This paperwork is then submitted to the court for approval. Only a brief court appearance by one party is required.

Q. What happens if a settlement cannot be reached?

A. If they cannot reach an agreement, the parties can explore other options for settlement ñ mediation, arbitration, neutral case evaluation. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial. The Collaborative attorney will transfer the information gathered and will assist the trial attorney in the transition.

Q. Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?

A. Attorneys are trained to approach cases with the underlying understanding that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being, ìWhat will happen if we go to court?î Court can often become a weapon or threat that derails rather than moves the parties to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are at the courthouse steps, after incurring substantial attorneyís fees and depleting their emotional resources.

The agreement by both the parties and attorneys that the collaborative attorney will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to both parties. The tendency to ìdriftî to court as the default decision-making method is reduced.

In addition, the open exchange of information that happens as part of the Collaborative process gives the Collaborative attorneys insights and information that might not be available in litigation. Requiring both parties to get new trial counsel allows everyone to fully and freely
participate in the Collaborative process so that the chances of reaching an agreement are optimized.

Q. Who should consider Collaborative Law?

A. Everyone should consider Collaborative Law, and determine whether it will work in their situation. Collaborative Law works best for parties who want to:

* settle without going to court and commit to a good faith effort to do so.
* maintain their privacy and dignity, and the dignity of the other party as they go through this life transition.
* maintain a solid foundation on which to rebuild a post-divorce relationship for the
benefit of the children, mutual friends, and other family members.
* conserve their financial resources for their children, their retirement, or for activities that are more fun than getting divorced.
* control the timing and outcome of their divorce process without interference from
strangers and impersonal "systems."

Q. What do I do if I want to use Collaborative Law?