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An Alternative to the Traditional Court Battle

Collaborative law offers an alternative way to resolve family law disputes.

Separating or divorcing is never easy. But when couples and their advocates take a less adversarial approach, their entire family benefits.

Collaborative practice (often called collaborative law) helps families resolve divorce and custody issues with dignity and respect. In the collaborative process, husbands, wives, their attorneys, and any other collaborative professionals working with the family, agree to resolve all issues of their case without contentious court proceedings. They plan together to craft an agreement. They make thoughtful decisions that can actually work for the entire family.

WHAT IS COLLABORATIVE LAW?

Collaborative law is an alternative to the traditional court battle. In the Collaborative Process attorneys work together typically with neutral professionals, such as financial consultants and child specialists, to help guide parties to resolution without litigation. The process is often called the “good divorce” because it helps couples to restructure their family, maintain control over the results and the process, while addressing issues important to them and their children. Collaborative law holds parties to a high standard of respect and honesty. While similar to mediation, the collaborative process goes well beyond mediation helping to keep the parties focused on finding common interests and goals and reaching a mutually satisfactory resolution that is best for everyone involved, including the children.

HOW DOES COLLABORATIVE PRACTICE WORK?

The Participation Agreement

All parties in a collaborative divorce or custody suit sign a Participation Agreement. This agreement outlines the responsibilities of the parties and their attorneys. All participants agree to work together, and if one of the parties no longer wishes to participate, neither party may use their collaborative attorney as counsel in litigation. The Participation Agreement is very important as it helps to ensure both parties and their attorneys are committed to making the process work. The Participation Agreement also requires full disclosure where both parties provide all necessary information requested by any team member to fully address any issue in the divorce or custody dispute. Full disclosure applies to all information required to come to a fair resolution of the clients’ issues. This insures that everyone in the process has all of the necessary information to make informed decisions.

The Settlement Process

In the process, a series of meetings, called “four-way meetings” are held with both parties and their attorneys. Important issues are identified, prioritized and addressed at these meetings. The meetings are designed to allow both parties to be heard and have their concerns, frustrations, and fears acknowledged. Doing this creates a safe environment where, once the parties feel they are being heard, they are free to move on to working out solutions to settle their divorce or custody dispute.

The Interdisciplinary Team

In order to put together the best agreement for the parties and their children, it is often necessary to engage the services of experts to provide information and guidance. A collaborative divorce interdisciplinary team may contain several members. In addition to attorneys, team members may include counselors, a child specialist and a financial specialist. Some teams also use the services of a facilitator to help the parties communicate during the process. Most members of the team are neutral. It is often beneficial to have the specialist present at meetings where the issues they consult on are being discussed. Their expertise can be immediately useful when questions arise or options are being considered. Only the attorneys act as advocates. They provide legal advice to their clients and work to ensure their client understands the implications of any decision made during the process.

Parties going through a divorce or a custody action often come to the process in different stages of preparedness. Both parties are likely experiencing some difficulty dealing with the emotions that surface when trying to continue parenting children after a break up with the other parent. In the collaborative process it is acknowledged that the parties may need emotional support and guidance. In some cases each party will retain a licensed mental health professional to act as their “divorce coach.” This person becomes part of the interdisciplinary team. Coaches assist the parties in identifying their needs and in communicating those needs effectively. They may also provide counseling to help the parties deal with emotions. The coach is not a neutral participant; their responsibility is only to his or her client.

Any time children are involved it is likely the team will include a child specialist. The child specialist acts as a neutral and does not render any decisions as to custody. The child specialist meets with the children to determine their needs and concerns. The specialist acts as the voice for the child. The specialist also assists the parties by providing guidance regarding the needs of children at different developmental stages and in how to discuss divorce with the children in age appropriate ways. Information is provided to the team to help the parents explore strategies for maintaining stability in the children’s lives both before and after the divorce and in creating an effective parenting plan.

In some collaborative cases the team uses the expertise of a neutral financial specialist to assist in developing a plan to divide assets and debts and deal with options for division of retirement, spousal support, and the tax implications and other consequences of various options the parties may be considering.

Finally, teams sometimes find it is helpful to use a facilitator trained in mediation techniques to facilitate the meetings between the parties and their attorneys.

WHO IS A GOOD CANDIDATE FOR THE COLLABORATIVE PROCESS?

Most people are good candidates for the collaborative process. Some countries, such as Canada and Australia, are using the collaborative process almost exclusively for family law/domestic relations cases. It is encouraging and exciting to realize the possibility of resolving disputes in a positive manner.

On the other hand, some people may not be good candidates for this process. In relationships with a history of severe spousal abuse it may be impossible, both emotionally and psychologically, for the process to be successful. Where there has been some lesser level of spousal abuse, the collaborative law approach can succeed if appropriate professionals are involved in the process. Severe mental health issues or active substance abuse/addiction may also make it difficult for a party to rationally respond and participate in the collaborative process. However, as long as the person with the mental health problem or addiction is coping with it and seeking professional help these issues do not need to be an impediment to the use of the collaborative process.

CONCLUSION

Collaborative law goes beyond simple mediation and allows the parties to control the divorce process and outcome using neutrals to help guide them through a client-centered process. The parties set the pace – not a court’s calendar. The Collaborative Process is often less expensive and is almost always less taxing emotionally for the parties resulting in parents more able to work together effectively for the benefit of their children. Relationships with mutual friends and extended family members are often maintained. Money saved in this process is available for other matters important to the parties. Children are protected and, by agreement, are not put in the middle of the dispute while the team addresses their concerns. Use of a child specialist provides guidance to the parents helping to fashion a parenting plan that promotes stability, continuity and mutual respect.

Clients in divorce cases often have difficulty focusing on the issues as they are caught up in emotions. Collaborative Law Practice recognizes this emotional vulnerability and addresses it by providing coaching and counseling. Issues are recognized, prioritized and addressed during the process. Negative emotions and power imbalances that get in the way of settlement negotiations are diffused thus, allowing the parties to focus on how best to resolve their issues.

By working together, couples often obtain far better outcomes than in the traditional combative divorce process. This leads to less stress on all involved especially the children who look to their parents for ongoing guidance in their lives.