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Collaborative law, collaborative process and collaborative divorce are terms often used interchangeably. However, they are all components of collaborative practice, which has these key elements: the voluntary and free exchange of information, the pledge not to litigate and the commitment to resolutions that respects the parties' shared goals. Collaborative law describes the legal component of collaborative practice, made up of the parties and their attorneys. Collaborative process means the key elements of the process itself.
While collaborative divorce refers to the resolution of particular types of disputes (divorce and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law and other civil law areas where the parties are likely to have continuing relationships after the current conflict has been resolved.
In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions; but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.
Collaborative law has been designed to allow clients to have their lawyers with them during the negotiation process while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, 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 the both lawyers and the parties until both parties 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 counsel in litigation if this is consistent with the scope of representation upon which the client and lawyer have agreed. In collaborative practice, the lawyers and parties sign an agreement, which aligns everyone's interests in the direction toward resolution, and specifically provides that the collaborative attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached. Professional advice should be sought when deciding whether mediation or collaborative practice is the best process for any individual case.
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. 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.
The interdisciplinary collaborative team model (first developed by IACP former board president Peggy Thompson and IACP former board member Nancy Ross as Collaborative Divorce) is a multidisciplinary team approach to dispute resolution (usually separation and divorce), which includes attorneys, coaches, a financial specialist, and when there are minor children, a child specialist working interactively as co-equals. Professionals on the team all subscribe to the same core values and shared beliefs, consistent with the IACP ethical guidelines that none of the team members will be involved in any court process concerning a shared case, and all members will withdraw from the case if it becomes a court process.
Team members are selected by the clients at the beginning of the case. The team is ideally made up of:
The divorcing couple works with their divorce coaches to enhance their communication skills as well as learn self-management and negotiation skills to help them during their divorce process.
When they first meet individually with their divorce coaches, they work on acquiring the skills and knowledge they need to have a successful four-way meeting with their coaches as well as with their collaborative lawyers. During these meetings, the couple learns how to communicate their concerns effectively and discuss options for their parenting plan. These four-way meetings are crucial not only in helping the couple to work with the rest of the team during the divorce process, but also in assisting them with improving their co-parenting relationship.
During this process, the child specialist talks with the parents and meets with the child to assess the child's needs and concerns. The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process. Unlike a custody evaluator, the child specialist does not make specific recommendations but works with the coaches and the parents in making informed decisions to help their child. This information that the child specialist provides is essential not only for parents, but for the entire team as well.
With the information received from the child specialist, the couple, with the help of their coaches, crafts the parenting plan which is then incorporated into their final divorce document.
The neutral financial specialist meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information. The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options. Often, this information is presented in a five-way meeting, with the financial specialist, the two collaborative lawyers, and the couple, where the options are discussed. Then the couple, along with their attorneys, crafts their financial settlement.
Often, the process is coordinated by a case manager: usually one of the divorce coaches. This professional acts as a case coordinator to keep all the team members informed and the process on track.
This integrated model provides the couple with the services they need from the professional most qualified to address each of the complex and varied issues of divorce. Working together, these collaborative professionals help divorcing couples achieve an outcome that would not be possible without this cooperative team involvement.
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a settlement achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children.
Collaborative practice, by definition, is a nonadversarial 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.
Collaborative practice is guided by a very important principle: respect. By setting a respectful tone, collaborative practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, collaborative professionals are trained in nonconfrontational negotiation to help keep discussions productive. The goal of collaborative practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
When a couple decides to pursue a collaborative practice divorce, they each hire collaborative practice lawyers. All of the parties agree in writing not to go to court. Then, the spouses meet both privately with their lawyers and in face-to-face discussions. Additional experts, such as divorce coaches and child and financial specialists, may join the process, or in many cases, be the first professionals that a client sees. These sessions between spouses and their counselors are intended to produce an honest exchange of information and expression of needs and expectations. The well-being of children is especially addressed. Mutual problem solving by all the parties leads to the final divorce agreement.
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 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.
Divorce is both an ending and a beginning. Collaborative practice helps each spouse anticipate their needs in moving forward and include these in the discussions. When children are involved, collaborative practice makes their future a number one priority. As a more respectful, dignified process, collaborative practice helps families make a smoother transition to the next stage of their lives.