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Supportive, considerate, sensible, constructive, mutual.
Collaborative Practice
A constructive approach to the effective resolution of your divorce.
Many of us in the family law bar (and many family law judges, as well) have long recognized the need for a system that would permit our clients to effectively resolve their divorce issues without having to subject themselves to the traumatic adversarial process on which our court system is based. This concern has been echoed by professionals who deal with the consequences of divorce. The adversarial process in divorce cases is something that most clients experience as a hostile, wounding battle and an extreme invasion of privacy, a system which rewards the person who is most willing to fight and to attempt to injure the other even though the fight is also self-destructive. Even those willing to fight do so primarily because they believe that they need to make the "best" use of the tools that the system makes available to them if they are to survive their divorce case in court.
Collaborative Practice (often referred to here and elsewhere as, Collaborative Family Law) is a family law specialty which now enables us to offer our clients an effective way to avoid going to court and all that the adversarial process entails - threats, demands, court hearings and trials, resources expended in battle and results which leave a residue of hurt, anger and cynicism. Instead, our clients in Collaborative Family Law proceedings find a civilized, respectful, positive and effective way to resolve the admittedly difficult issue of divorce. They gain much in the process, not the least of which is a settlement that they and their former spouse have designed for themselves and which they have both endorsed as being appropriate for each of them.
The material here and on the other pages of this site and, if you would like to pursue these ideas, a personal consultation will to determine whether the Collaborative Family Law process or Mediation may be suitable ways for you and your spouse to find an effective resolution without having to run the gauntlet of the adversarial court system.
Important features of the Collaborative Family Law process:
- Private and Confidential
Since the proceedings are held in private, the details of an individual case are not part of the public record. The lawyers and any experts who are consulted are bound by strict rules of confidentiality.
- No Court
Everyone can focus on settlement without the threat, formality, and added expense of court because it is agreed at the beginning that neither the lawyers nor, the experts will ever be allowed to participate in any way should the court become involved. Neither will anyone use or threaten the use of any court or litigation tactics or procedures. This allows us to work as members of the same team with the shared goal of developing solutions that everyone is willing to endorse.
- Cooperative Approach
Each person is supported and represented by their own lawyer and yet you work collaboratively with your spouse and with your spouse's lawyer, too, in resolving your issues.
- Creative
This non-adversarial process allows the two of your to be more creative than the inflexible court process.
- Secure Climate
The atmosphere of integrity and full disclosure fully supported by the lawyers creates a climate in which mutually understood and acceptable solutions can be generated.
- Clients in Charge
You are a vital part of the settlement team consisting of both parties and both attorneys. You control the proceedings and you make the decisions rather than being controlled by a system that does not understand your needs, feelings and perceptions.
- Faster
The Collaborative Family Law procedure can be much less time consuming than litigation in the adversarial system.
- Child Sensitive
A non-adversarial atmosphere creates an environment for a more positive resolution for parents and children, too. A major focus of the collaborative process is addressing the needs of the children without exposing them to the detrimental court system. Children are protected. Central to this process are meetings with selected legal, financial and mental health professionals to resolve the issues presented by your family needs.
- Four Party Conferences
While no two cases, clients or lawyers are alike, the emphasis in the approach is to find a way in which the lawyers can work with the parties. This occurs in a conference room outside of the court.
- Collaborative Family Law Professionals Are Uniquely Trained
Collaborative Family Law Professionals are are uniquely trained family law lawyers who have undergone a training program in non-adversarial dispute resolution. They are taught to understand the special needs of couples and families seeking an alternative means to conflict resolution. Creative mediation techniques are employed and sensitivity to personal and family needs are considered. When appropriate, specialists such as family therapists, business and property appraisers, and forensic accountants assist in the process to assure a satisfactory outcome for all parties.
How to Get Started
Share this information with your spouse. Even though this may be a very difficult time for each of you, this is an opportunity for both of you to choose a constructive way to take care of the business of divorce. And be sure to look over the standard documents:
These documents and the other information on this site will give you a good idea of how the Collaborative Family Law process works.
In our initial consultation will discuss how the Collaborative Family Law process would work in your situation and how it will differ from what you would experience in divorce litigation. We will also examine various aspects of your case - for example, whether there are any needs that might benefit from prompt attention, how you and your spouse can best assemble the necessary financial information and your goals and your most significant concerns. We will arrange to provide your spouse with this information and with a list of well qualified collaborative lawyers who are members of the International Academy Of Collaborative Professionals. Then, your spouse will go through the same process with the lawyer she or he selects.
The next step will be to arrange, through the lawyers offices, for the first 4-way (clients and lawyers) meeting, agree on an agenda and identify any material or information that would help to make the meeting as productive as possible. At the first 4-way meeting, you, your spouse and your attorneys will sign the standard documents, if you haven't done so earlier. The first meeting is usually devoted to discussing the individual and family goals that each of you have and working out any temporary arrangements on subjects that might be of concern to either of you. By the end of the first meeting, you will have begun to identify the subjects that will be addressed in your agreement, the information that will be needed so that those subjects can be discussed intelligently and how best to obtain that information. Most important of all, you and your spouse will have begun to see that progress is being made and that it is actually possible to achieve a constructive resolution of the difficult issues of divorce and to do so in a respectful environment.
Why Collaborative Law?
"Chip Rose,The Mediation Center, Santa Cruz
The most profound development in the legal profession since the Pound Conference convened in the early 70's and pointed the way to alternative methods of dispute resolution (ADR), is the rapidly growing field collaborative law or collaborative negotiation. So new is this development, that it there is no agreed-upon nomenclature to describe it.
As we will discuss it in this article, collaborative law refers to an approach to dispute resolution in which the parties are represented by counsel of their own choosing, however the attorneys are chosen because they belong to an identified group or association and have made a commitment to represent their clients in reaching a settlement without resorting to any form of litigation or any adjudicatory procedure. Put another way, the role of the attorneys is to facilitate the development of a voluntary settlement without the threat or use of power. In the contrast to the traditional role of attorneys in prosecuting and defending legal causes of action, this is revolutionary. Although a variety of different models are being developed by interested professionals all across the country, common characteristics link them together in a shared paradigm.
The single most important of these characteristics is the commitment to achieve settlement without the use of any form of litigation. The most challenging and controversial aspect of this approach is the contractual obligation of the collaborative attorneys to withdraw from the case if any party chooses to abandon the collaborative law approach. This is disincentive to a party who enters the process without good faith. As this model works to establish itself as a meaningful response to the needs of the consuming public, it is hard for many to overcome the natural skepticism that comes from years of experience in the zero-sum game of adversarial negotiating. In reality, the commitment to withdraw if litigation breaks out is a check against the tendency for attorneys to resort to their well-developed adversarial skills when the going gets tough.
As soon as attorneys have gained the experience of completing numbers of collaborative cases, they will acquire the same high level of skill, confidence and creativity that previously garnered them reputations in the field of litigation. Only now these reputations will be for the ability to successfully resolve clients' problems in ways that are constructive, cost-effective, and maximizing in the outcome to each party. Another major and distinguishing characteristic of the model is its focus on educating and empowering the client to become pro-active in all phases of the dispute resolution process, especially the settlement. This contrasts starkly with the typical relegation of the client to the caboose of the litigation express where the byzantine procedures of the legal process play such a dominant role in the path to trial or settlement that the client frequently is seen as getting in the way of the strategies of the attorney who is charged with responsibility for aggressively pursuing the interests of the same client.
From the clients' perspective, what does this process offer? Above all else, this approach guarantees the clients control over the process of resolving the dispute, control over the cost of the process and control over the outcome of the dispute. None of these guarantees is associated with the adjudicatory model of an attorney-client relationship. Client dissatisfaction with traditional legal procedures and the role of attorneys in our society is well established. The challenge to the legal profession is to find ways to respond to the evolving needs of the clients who are the consumers of the services that attorneys sell.
The collaborative approach begins with a focus on the needs and issues of the clients and keeps them connected to the process all the way to settlement. Although the traditional litigation model does not consciously attempt to separate the clients from the litigation, de facto separation is the predictable and inevitable outcome of a paradigm that is based on something other than client self-interest.
The emphasis on the law as a justification for position-taking in the context of a competitive negotiating model, leads to a process based on strategic maneuvering that is the antithesis of cooperation and collaboration. The emphasis on legal procedures requires the education and experience of skilled attorney. As a result, most of the pre-settlement procedures of litigation are primarily focussed more on the role and activities of attorneys than of the clients. Predictably, the clients feel separated from the process and disconnected from anything that they might do to bring about a resolution. With this focus on the role of the attorneys and their strategic decision-making responsibilities associated with prosecuting or defending the action, comes the expectation of the client that the attorney will produce the outcome that the client believes is fair and just. When that "fair and just" outcome is not achieved in the manner expected by the client (which is about 98% of the time), the client naturally holds the attorney responsible for the less than satisfactory result.
What is so ironic about the adversary model is that the procedures which define it as an approach to dispute resolution, institutionalize the disconnection between the clients who are responsible for the dispute and who have the greatest potential for creatively solving the issues, from the actual process of preparing for settlement or resolution of the dispute. From the attorneys' perspective, what does this process offer? Most importantly, the collaborative approach begins with clearly defining the roles of the client and counsel.
The clients are responsible for the fact that they are in dispute and it is their responsibility to make decisions on mutually acceptable outcomes that resolve the dispute. The attorneys are responsible for developing the process that allows the clients to accomplish these objectives in the most effective manner possible. It is not the responsibility of the attorneys to resolve the dispute. The significance of this shift in the definition of the attorney-client relationship is profound and in the context of legal tradition, it is not an exaggeration to describe it as revolutionary.
Freed from responsibility for the outcome and committed to developing the process, the tasks of the attorney become pragmatic, specific, and constructive. With the clients becoming more responsible for the outcome, the most effective work is done in face to face meetings so that the clients have the opportunity to grow into the responsibilities that rest with them. With the clients fully participating, the attorneys undertake the following process developments: Identification of the clients' respective needs, interests and issues; Development of process rules, agendas and time lines; Identification and exchange of all relevant information and documents; Development of all possible solutions to the issues without limiting the search to the law model; Educating the clients as to both sides of all the issues, all the settlement possibilities, the consequences of each particular outcome to each party and the needs and interests of each of the parties; Helping the parties develop settlement proposals built on addressing the greatest needs of each; Helping the parties negotiate their settlement proposals based on a commitment to achieving and outcome that is mutually acceptable and mutually beneficial to each party.
There are a number of attractive features that have attorneys forming their own collaborative law groups and marketing this new approach to dispute resolution: The frustration and futility of so many elements of the litigation approach. The stress and strain of the adversarial relationships that color daily practice of law as a profession. The inability to focus on positive, constructive and creative solutions to problems in the context of the litigation model. The client dissatisfaction with the relationship and outcome that are so frequently the by-product of that approach. The realization that the institutionalized procedures of litigation are not addressing the clients' needs nor are they providing a source of professional pride and satisfaction as much as they are creating stress and eventually, professional burnout.
While it is true that any one, individual attorney can apply collaborative practices to any case to good effect regardless of the level of awareness of opposing counsel, there is an exponential increase in value and effectiveness that comes from a community of attorneys forming an organized association of collaborative professionals and training together to develop their own protocols of practice and codes of conduct. The formation of a Collaborative Law group or association creates the ability to promote and market the types of services and the kinds of skills that the consuming public wants from the legal profession.
It is a safe prediction that within a decade, we will have three mainstream dispute resolution choices: collaborative law, mediation and litigation. As professionals, attorneys will have the opportunity to define how they represent clients and clients will have the opportunity to select how they wish to engage the services of their attorney in resolving their disputes.
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