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COLLABORATIVE PRACTICE FAQs
MEDIATION FAQs
What Is Collaborative Practice?
Collaborative Practice is a formal process recognized by our Courts and by California's Family Law Act for resolving divorce cases and other Family Law matters without the use of the court/litigation system. As part of their commitment to this process, the parties guarantee each other that they will never be subjected to any of the traditional, adversarial, conflict-based court system for the resolution of any divorce issues.
Both parties retain separate, specially-trained lawyers whose only job is to help them to settle the issues in their divorce. All participants agree to work together respectfully, honestly, and in good faith to find mutually acceptable solutions to the legitimate needs of both parties. No one may go to court, or even threaten to do so, and if that were to occur, the Collaborative Family Law process would be terminated automatically and both lawyers would be disqualified from any further involvement in the case. Lawyers hired for a Collaborative Family Law proceeding can never under any circumstances go to court or otherwise engage in any Family Law litigation on behalf of either party against the other.
Collaborative Practice has these key elements:
- the voluntary and free exchange of information;
- the pledge not to litigate, and
- the commitment to resolutions that respect the parties' shared goals.
In Collaborative Practice cases each party is represented by his or her own counsel who has had substantial training in the non-adversarial techniques and protocols, usually under the auspices of the International Academy of Collaborative Professionals. Many are also trained mediators, as well. This is a collegial process in which the emphasis of all participants is on the the empowerment of the parties achievement of resolutions that are satisfactory to both of them.
In Collaborative Practice,the parties and their lawyers who are specially trained in the techniques and protocols established by the International Academy Of Collaborative Professionals agree to forego going to court. This enables a couple to engage in four-way discussions to problem solve and create solutions. Like Mediation, Collaborative Practice enables all parties to focus on a sustainable and thoughtful way to restructure a family and set a new direction for healing and hope. In my mind, Collaborative Practice is a natural extension of Mediation. Both models enable me to provide a measure of peace for divorcing couples, rather than an escalation of conflict. I value both processes because each has its own merit in enabling parties to sit down and discuss often complex and emotionally charged issues in a respectful and productive manner. Both choices offer a way to survive divorce and save your sanity and your future - without going to court.
What information and documents are available in Collaborative Family Law negotiations?
Both sides sign a binding agreement to disclose all documents and all information that relates to the issues and to do so early and fully and voluntarily. "Hide the ball" and stonewalling are not permitted. Where it would be helpful in promoting understanding of the necessary information, other professionals (C.P.A.'s for example) who are familiar with the Collaborative Family Law process are retained for the benefit of both parties to assure full mutual understanding of the facts and alternatives.
What happens if one side or the other refuses to disclose or is dishonest in some way, or misuses the Collaborative Family Law process to take advantage of the other party?
Because we are all human, it is possible that this could happen in a Collaborative Family Law proceeding. This is exactly the type of thing that can and does happen all too frequently in court based, adversarial divorce litigation. What's different about Collaborative Family Law is that the collaborative agreement requires a lawyer to withdraw if his or her client is being less than fully honest, or participating in the process with less than full good faith. For instance, if documents were to be altered or withheld, or if a client were to be deliberately delaying matters for economic or other gain, the lawyers have promised in advance that, if they cannot rectify the situation, they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.
Is Collaborative Family Law the best choice for me?
The Collaborative Family Law process is not necessarily right for every client, but it is well worth considering if some or all of these are true for you:
- You want a civilized, respectful resolution of the issues.
- You do not want to be subjected (nor, to subject your spouse) to the invasive, hostile and adversarial activities that are the every day fare of the court-based divorce system.
- You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with litigated dispute resolution between parents.
- You and your spouse or partner have a circle of friends and extended family in common that you both want to remain connected to.
- You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling your own conflicts and doing so with integrity.
- You value privacy in your personal affairs and do not want details of your family or financial restructuring to be available in the public court record.
- You value control and autonomous decision making and do not want to hand over decisions about restructuring yyiyiour financial and/or child-rearing arrangements to a judge or to any other stranger who does not know your family and who will not have to live with the results.
- You recognize the restricted range of outcomes and the "rough justice" that is the general rule in the public court system, and you want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
- You place as much or more value on the relationships that will exist in your restructured family situation as you place on fighting in an effort to obtain the maximum possible amount of money for yourself.
- You understand that conflict resolution with integrity involves achieving not only your own goals but finding a way to achieve the reasonable goals of the other person.
My friends' lawyers says that they settles most of their cases. How is Collaborative Family Law different from what other lawyers do when they settles cases in the adversarial system?
There is a world of difference between a settlement that is negotiated during litigation and a settlement that takes place in an atmosphere where you are assured that there will be no adversarial litigation and no court proceedings - not even the threat of court. Most litigated family law matters settle figuratively, if not literally, "on the courthouse steps". By that time, a very great deal of money has been spent on a process that causes a great deal of emotional damage and one which will often subject the parties to years of hostility and discomfort. These litigation settlements are reached under conditions of considerable tension and anxiety and both "buyer's remorse" and "seller's remorse" are common. All too often the result of such a "settlement" includes a great deal of (very understandable) resentment toward the terms and demands of the settlement, toward the system and toward all of the participants in that process.
Nothing could be more different from what happens in a typical Collaborative Family Law settlement. The process is geared from day one to make it possible for creative, respectful collective problem-solving to happen. It is quicker, more creative, more individualized, far less stressful, and overall far more satisfying in its results than what occurs in most conventional settlement negotiations. Our clients tell us that their experiences in the Collaborative Family Law process are worlds away from the experiences of their friends and acquaintances who have taken their divorces to the courts. We as Collaborative Family Lawyers can also tell you how much more satisfying it is for us as human beings to be able to offer our clients a civilized, respectful and creative alternative to the litigated divorce.
Why is Collaborative Family Law such an effective settlement process?
As is the case with Mediation, Collaborative Practice lawyers approach cases with a completely different state of mind about what our job is. We call it the "paradigm shift." Instead of being dedicated to using the adversarial system in an effort to obtain the greatest possible piece of the pie for our own clients, almost without regard to the human and financial costs Collaborative Practice is dedicated to creating an atmosphere that is dignified, respectful and creative, one in which our clients will achieve their highest intentions for themselves in their post-divorce restructured families.
Collaborative Pactice lawyers do not act as a hired guns. Nor do they take advantage of mistakes made by the other side. We do not threaten, coerce, insult or focus on the negative in either of the parties. We expect, we lead by example and we encourage the highest good-faith problem-solving behavior from the parties and we stake our own professional integrity on delivering this service effectively to all of the clients of the Collaborative Practice process.
Collaborative lawyers trust one another; we work, train, study and engage in peer review together. We know from these experiences over the years that we each share these same values and priorities. Although it is true that we still owe a primary duty to our own clients, within all mandates of professional responsibility, we also know that the only way that we can truly serve the real best interests of our clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the Collaborative Family Law process.
Collaborative Practice offers a huge potential for creative problem-solving, in that only Collaborative Practice puts two lawyers in the same room pulling in the same direction to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they pull in opposite directions. No matter how good a lawyer I am for my own client, I cannot succeed as a Collaborative Practice lawyer unless I also can find solutions to the other party's problems that my client finds satisfactory. This is the special characteristic of Collaborative Practice that is found in no other dispute resolution process.
Why is it so important to sign the official Collaborative Family Law Agreement and to use only lawyers with collaborative training and skills? Can't you work "Collaboratively" with any other lawyer but still go to court if the process doesn't work?
The special power that Collaborative Family Law has to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the lawyers can still consider unilateral resort to the courts as a fallback option, their thought process does not become transformed; their creativity is actually crippled by the availability of the court and adversarial system, coercion and conventional trials. Only when everyone knows that it is up to the four of them and only the four of them to "think their way" to a solution does the special "hyper creativity" of Collaborative Family Law get triggered. In every Collaborative Family Law process there is a moment when each person realizes that solving both of clients' problems is the responsibility of all four participants. It is that realization and the assumption of mutual responsibility which enables people with seemingly conflicting goals to work together to create solutions that they can each endorse. The Collaborative Family Law process is much different from what lawyers in an adversarial, litigated divorce do when they agree to "cooperate." It requires special techniques, attitudes and understandings which are based on special training, talents and procedures and on shared experiences in the Collaborative Family Law process.
Collaborative Family Lawyers can and we do wherever possible work cooperatively with other lawyers in conventional court system divorce proceedings but, neither the experience nor the results are the same as in a true "collaborative" proceeding.
How do the Allied Professionals contribute to the process?
FINANCIAL PROFESSIONALS can be a life saver in a Collaborative Family Law case since they function as neutrals and have no vested interest beyond providing information, overview and options to the parties. They can assist with the discovery process by gathering and organizing documents and educate the clients regarding the short and long term effects of a settlement plan. They can provide practical planning, guidance and support to the divorce process.
MENTAL HEALTH PROFESSIONALS can be employed in a number of roles during the collaborative process. They can serve as divorce coaches to help parties communicate more effectively with one another during the meetings. Since they are adept at picking-up the less obvious psychological issues that can undermine effective communication and resolution of differences, they can keep counsel appraised of of problem areas in the marriage relationship or with a minor child. Mental health professionals can also serve as child specialists, meeting with the chidren, exploring their reactions to the family break-up and serving as a voice for the child. Finally, they can assist the parents in crafting a parenting plan which best fosters the children's developmental needs.
What is mediation?
Like Collaborative Practice, Mediation is a formal process recognized by our Courts and by California law. It is a private, confidential, cooperative dispute resolution process in which the mediator, an impartial trained professional neutral, helps the parties in their efforts to exchange information, communicate, negotiate, develop understanding of each other's perspectives to reach a mutually acceptable resolution that they each recognize as being better than their other alternatives. The emphasis open communication, an honest exchange of information, respect and reciprocity.
How Will Mediation Benefit Me And The Children?
Mediation empowers divorcing couples to make their own decisions and to control their own futures by facilitating the review of information, needs, concerns, goals and other interests that needs to take place in order for people to design and agree on arrangements that are in the best interest of each of them and of their family. The decision-making process learned in mediation can provide a model for successful co-parenting in the future. Satisfaction with mediated settlements (like those arrived at through the Collaborative Practice process) is typically much higher than is the case with court orders or court-based settlements because both parties have worked together to create their own agreement in a non-toxic atmosphere.
How does divorce mediation work?
Once they have decided to resolve the issues in their divorce with mediation, the parties jointly select a mediator. This process will often include a relatively brief joint introductory session to give the parties an opportunity to meet the mediator in person and to get an initial sense of how they will feel working with the mediator in each other's presence. This will help you to develop a sense of understanding and confidence that will be most valuable as the process advances.
During or at the end of the introductory session you will each receive some written information about the process to review. Once you both decide to proceed, you each call to schedule the first working appointment with the mediator. You will receive a letter confirming your appointment along with an intake form to fill out and a copy of the written Agreement to Mediate for your review. At the first session, the mediator will explain the process, the mediator's role, the parties' role. You and the mediator will discuss decide on any ground rules that either of you think might be helpful to make the process safe and fair. You and the mediator will also review the written Agreement to Mediate and you will get answers all of your questions about the agreement and the process. After the Agreement to Mediate is signed by both parties, the mediator and the parties develop an agenda of the issues to discuss and start gathering information and documents any subjects that either of you think need to be discusses usually including:
- All the assets and debts so parties can make fully informed decisions about their division of property
- Income and expenses so parties can decide what support is needed, the amount of support and for how long
- Children's and parents' needs and interests so the parents can develop a parenting plan which will work for everyone
Throughout the process, the mediator facilitates communication so that each party can safely express what is important to them and why. The mediator assists both parties in negotiating an agreement that meets their individual and family needs, interests and values. The goal is for the parties to reach an agreement that will be considered fair and acceptable and honored by both parties now and in the future.
How long does divorce mediation take?
As a general rule, mediation of a full, comprehensive divorce averages from 3 to 8 sessions. Some people take less time and some take more time, depending on the complexity and number of issues, and the ease with which the parties adapt to the process. Each session is a minimum of one hour and more frequently two; on occasion a session may be scheduled for as long as three hours where both parties agree that a longer meeting will be useful. The parties and mediator together decide when and how often they will meet. The range of time to complete a mediation and obtain a final divorce can be anywhere between a few weeks to a year or more. The timing depends on the readiness of each party, the availability of the needed information and any outside consultations with experts that may be pursued.
What does divorce mediation cost?
The hourly rate for mediation sessions is $350. As the process reaches a conclusion a Memo Of Understanding (MOU) will be drafted and revised so that it accurately reflects all of the agreements that you have reached during the mediation process. The total cost of a full, comprehensive divorce mediation, itself, including the MOU generally runs between $5,000 and $7,000. There are usually some additional costs that people pay; costs of experts like appraisers and accountants, if you decide that their input will be useful and in connection with individual legal advice that they may seek during the process and the drafting of the formal documents (e.g., judgment with MSA, declarations of disclosure, income and expense declarations) needed to conclude the legal end of the divorce process. Compare this to divorces obtained in litigation where each pays person usually pays a $5,000$10,000 initial attorney retainer which must be replenished as it is used up. In traditional adversarial representation, it is not unusual for each party to pay between $20,000 and $50,000 to obtain a final divorce.
I think I might need an attorney at some point; do I have to give up the right to have an attorney if I participate in mediation?
No, not at all. You may want to establish a relationship with a family law attorney who will be able to serve you your legal consultant at various times during the process. Among the most highly qualified to provide legal advice to divorce mediation clients are lawyers who have a sub-specialty in Collaborative Process, but you are always free to retain or consult with the lawyer of your choice. The each party decides what level of involvement the attorney will have in the mediation. Some people do not want to have an attorney involved at all or at least not until the legal drafting needs to be done. Others want to have an established relationship with an attorney from the early stages of the mediation so that they can obtain legal advice in the context of the mediation process outside of the mediation whenever they feel the need to. Although it is not a very frequent ocurrance, a few people prefer to have their attorney attend some or all of the mediation sessions with them; this is acceptable provided that both parties agree. At the least, I strongly advise, and sometimes insist, that each party have a consulting attorney for the process of drafting and reviewing the final Marital Settlement Agreement.
Doesn't the court as part of the adversarial system give me more protection if my spouse lies about our assets?
Not necessarily but, this is a common question and a very important matter. Keep in mind though that, should you find it necessary at any point, you are always free to retain litigation counsel and use the same "discovery" methods that are available to any litigant in the court system. The reality for most people (and while this may initially seem to be counter-intuitive) is that many people who find themselves in litigation can be strongly resistant to "being forced to provide documents and information" but, they are much more comfortable doing so when they have voluntarily agreed to do it in order to avoid the feeling of being "pushed around." Fear, anger and other of the sometimes overwhelming emotions of divorce can overtake common sense and willingness to follow the rules, especially when someone feels under attack or pushed into a corner.
What's more, in order to get a final judgment for dissolution of marriage, whether you are proceeding in mediation or through the litigation process, each party must prepare and sign asset, obligation and income disclosure forms under penalty of perjury. There can be very serious consequences if it is later determined that those documents contained any significant misrepresentations or omissions. This is always the case no matter what process you use to resolve your divorce.
On the other hand, one of the many huge advantages of a voluntary process like mediation is that the fact that they have agreed to participate usually makes people much more willing to cooperate honestly.
Regardless of the process chosen to resolve issues, divorce does not occur in an emotional vacuum. And those feelings need to be acknowledged - something that definitely does not happen in litigation, to say the least. Often, at the beginning, spouses are very suspicious and distrusting of each other; and frequently not without cause. Often, trust has been broken in some way, and angry, threatening statements have been made which scare the other spouse or both spouses. One of the purposes of mediation is to begin to rebuild trust between the parties. And, of course, the information provided is always subject to independent verification during the course of the mediation process whenever you or your spouse feels that it might be helpful to do so. Just the fact that independent verification is a possibility supports agreements to make full and complete disclosures.
Once people start the process and begin to have open discussions and clarify misunderstandings, the feelings of distrust often start to dissipate. People further build trust by fully disclosing all relevant information and by making and keeping small agreements. In mediation, each person agrees to voluntarily disclose all financial information as is required by law in any divorce proceeding whether in court or not. The openness of the mediation process and the presence of the mediator and both spouses tends to create an atmosphere that encourages disclosure and accountability. If one spouse has questions about the information provided by the other spouse, the mediator will facilitate the discussion and help the parties find ways to assure confidence in the information.
This being said, however, if someone is skilled and determined to hide assets, the formal discovery procedures in the litigation process may or may not be successful in uncovering the information. This is often an expensive process and is not guaranteed to be successful. If you are certain that your spouse is sociopathic or will lie in order to hide assets, you may not want to do mediation.
On the other hand, even if you think that there is extraordinary cause for suspicion, you may want to test the waters by trying mediation and, if your concerns are not resolved, using legal counsel and forensic financial experts as a way of testing to verify whether proper disclosures are being made. If your spouse is not forthcoming with information, you can always terminate the mediation and proceed in court. And, if your spouse does comply with the disclosure rules, you have each saved yourselves the huge sums of money that would otherwise have been spend on litigation counsel, forensic experts, etc. Not to mention that you will have been able to resolve things with much less emotional trauma, at your own pace and in a way that you personally decide is acceptable and appropriate.
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