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Collaborative Law: A New Perspective on Divorce

Family law attorneys are well aware that for most clients, a contested family law case is anything but a positive experience regardless of the legal outcome. Clients are dissatisfied as a result of cost and as a result of the high level of stress and conflict which results from the litigation experience. While settlements frequently occur in family law cases, those settlements are often after significant time is spent in the “battle” and when a trial date is approaching.

In addition to financial costs, family law disputes commonly involve substantial emotional and psychological costs. Mental health practitioners are all too familiar with the severe and long lasting wounds that high conflict family matters can inflict on the parties and on their children. While most competent family law attorneys are aware of this impact and may try to conduct their practice in a way to help minimize the harm, the litigation process ends inevitably polarizing and increases rather than decreasing the tension between parties as well as their ability to co-parent. Collaborative law is a method of handling family law matters outside the litigation setting.

The hallmarks of Collaborative Family Law include:

  • A shared commitment to proceed honestly and in good faith, fully disclosing assets, debts, goals and concerns.
  • An avoidance of the resort to litigation or even the threat of litigation.
  • Active participation by the parties, including (often multiple) four-way settlement conferences.
  • Identifying common goals and legitimate interests of both parties with an attempt to meet the interests of both parties if at all possible.
  • The potential to work directly with other professionals in a team approach to assist in a resolution process (counselors, accountants, financial planners, etc).
  • Joint retention of any additional experts needed in the process.
  • Disqualification of all lawyers, other professionals or experts involved in the collaborative process from participating in any litigation proceedings between the parties.

Collaborative divorce is not for every case. It is dependent on good faith participation, leaving a potential for abuse. Formal court motions and orders are not available to force compliance or to resolve roadblocks, although mediation and arbitration are available. Where there is a history of mental illness or uncontrolled spending or hiding of assets, the inability to resort to court enforcement may pose particular challenges.  Parties must be able and willing to participate in face-to-face four-way meetings, which can be emotionally difficult for parties.

Benefits of the Collaborative Law Process include:

  • No financial or other incentive for attorneys to become “part of the problem” by refusing to participate in negotiations or taking “take it or leave it” positions;
  • Specific needs and challenges of the individual family are the guiding factors in crafting a unique agreement;
  • Effective inclusion of mental health professionals and financial specialists for maximum effectiveness in addressing emotional issues and need for financial planning;
  • Significantly increases the likelihood of preserving a positive relationship for the benefit of the children, reducing hostility and conflict;
  • Neither party has to face the risk or fear of an unknown imposed decision;
  • Offers a high level of flexibility to explore creative solutions;
  • Maximizes the client’s privacy by avoiding filed motions in open court hearings;
  • Potential for costs savings;
  • Offers the potential for parties to learn about and improve their communication, negotiation and problem solving skills.

Collaborative law requires a paradigm shift. The idea is to avoid the orientation that one party must win and the other party must lose on all or many individual issues and instead attempt to adopt a “win-win” orientation. For instance, the input of counselors or financial planners might be obtained with an effort to determine what resolution would help both parties move forward, rather than restricting arguments to what the law would require a parent to do. Parenting schedules and child support are evaluated not just for what the law allows, but to determine what is truly in the child’s and therefore parties’ best interest. The parties are encouraged to attempt to view the issues from each other’s perspective and the opportunity to manage conflict and educate and counsel a client during the process leaves the parties better able to negotiate future parenting issues as they arise.