Collaborative Divorce FAQ

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Collaborative Divorce FAQ

What Are the Benefits of Collaborative Family Law?

Collaborative Family Law focuses on providing a framework that will allow all involved parties to reach a mutually agreed-upon settlement of their disputes. The process results in valuable, tangible, benefits. It creates a cooperative environment that encourages communication. It provides a setting where you can work together with your spouse to meet your children’s needs — regardless of their ages. The process is designed to set a tone that will encourage open communication and reduce conflict in the future.

  • It establishes a team approach instead of adversaries. Your lawyer supports you; your spouse’s lawyer supports your spouse. But you all work together in formulating resolutions to your marital difficulties and, in doing so, retain control of the process. Nothing gets resolved in a collaborative divorce unless you agree to it.
  • In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.
  • You and your spouse shape the agreements together — which means you both are more likely to abide by them in the future. Such an arrangement diminishes the parental conflict the adversarial litigation system tends to generate and helps protect children from facing the anguish and divided loyalties that result from going to “war”.
  • You can schedule meetings with all parties without waiting for court dates. That means you generally spend less time and, as a result, less money to achieve your goals of emotional and financial closure. It also means you eliminate the fear and anxiety associated with court proceedings.
  • Your issues stay within the collaborative law setting. That gives you more privacy and greater confidentiality — and less stress during an already stressful time.
  • Collaborative family law focuses on all involved parties reaching a mutually agreed-upon settlement of their disputes. The process results in invaluable benefits, such as the ability to continue to communicate with your spouse for the benefit of the children at the conclusion of your divorce.
  • It creates a cooperative environment where communication remains open, which provides a setting where you can work with your spouse to meet your children’s needs — regardless of their ages. That helps set a tone for open communication and reduces conflict in the future.

How Does the Practice of Collaborative Law Affect Attorney Fees?

Representation and fee agreements between attorney and client are not directly affected by the participation agreement.

How Does a Lawyer’s Assessment of the Likely Outcome of the Client’s Case Affect the manner in which the Lawyer Approaches a Collaborative Law Case?

Although the manner in which participation agreement prohibits threatening litigation, the collaborative lawyer will assess both the strengths and weaknesses of the client’s case included in any such assessment will be an opinion as to the outcome of the case if it were to be litigated. The lawyer’s assessment of the likely outcome of the client’s case if it were to have been litigated will be incorporated into the dialogue of discussions between the partners and attorneys during the collaborative process.

What Can Collaborative Lawyers Do If Negotiations Reach An Impasse?

Collaborative Law is based on an interdisciplinary network model. Collaborative lawyers can agree to employ experts, such as therapists and financial experts, to advise both sides as to disputed facts or law. The participation of interdisciplinary network professionals can help move the case forward toward solutions. Finally, collaborative lawyers and parties can hire a mediator at any time.

For What Type of Client Does Collaborative Law Work?

People who have at least “a little goodwill” toward wanting to work out a settlement are candidates for a collaborative law approach. Without that small bit of openness in the process, collaborative law will probably not work. Collaborative law requires clients who want to make their own decisions regarding their lives, and who are capable of seeing more than one way to resolve an issue.

Can One Lawyer Practice Collaborative Law If The Other Side Has Not Signed A Participation Agreement?

 It is assumed that in most cases the parties will proceed on a collaborative law basis only when all lawyers and clients have signed the participation agreement. Circumstances could arise, however, when one party and their lawyer decide to contract with each other with the premise that the lawyer is hired only for settlement purposes, even when the other side has not signed a participation agreement. For example, some lawyers might decide they do not wish to litigate and a client might still want their services, or some clients might be certain enough that litigation is not in their interests that they would choose to establish that limit upfront. It may also be a useful strategy for one party to approach another through their collaborative lawyer with a participation agreement already signed. This would demonstrate a clear intent to seek resolution through non-adversarial means and thus encourage a more open and less defensive response.

How Is Collaborative Law Different From Mediation?

Mediation involves the use of a neutral third party in facilitating the negotiation and settlement of a dispute between the parties. Parties retain the option of walking out of mediation and proceeding to litigate with their current attorneys. In collaborative law cases, lawyers and their clients will talk and negotiate with or without the assistance of a third-party neutral, unless they find such an intervention would be useful. In mediation, the neutral cannot be an advocate for one party over another or propose a possible outcome if the case is litigated. In a collaborative law case, the attorneys are committed to continuing a productive dialogue until such time a satisfactory solution is reached since litigation involving the parties is not an option.

What if the Settlement is Not Achieved Cooperatively?

In the event the parties are unable to arrive at a settlement through the Collaborative Law Process, the lawyers withdraw from the case and the parties are free to retain trial attorneys to pursue their matter in court. The result is that the parties will have the best representation for each phase of the proceeding, and possibly save time spent in a subsequent, costlier trial.

Is a Collaborative Lawyer Required to Disclose Information That the Other Side Has Not Requested, but Which May Be Important to the Case?

Yes. The informal good faith question/good faith response approach is intended to require any party to disclose information that may be relevant to the settlement of the case. The parties and attorneys are committed to preventing abuses that would naturally impede the collaborative law process, including one party inundating the other with mountains of information that will be of no use to the other party. In the collaborative law process, the goal is to provide the parties with the information needed to resolve their dispute.

What Happens If a Party Doesn’t Fulfill its Disclosure Obligation under the Participation Agreement?

Participation in the collaborative law process is based on the requirement that the parties to the participation agreement (both attorneys and clients) have acted in good faith and have provided accurate information as required under the good faith question/good faith response approach. Thus, a party’s refusal to fulfill its disclosure obligation under the participation agreement will make it impossible for the parties to reach a fair resolution. When an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the collaborative lawyer to withdraw.

What If, Sometime after Entering into a Settlement as a Result of a Collaborative Law Process, a Collaborative Lawyer Discovers That the Other Party Failed to Disclose Information That Should Have Been Disclosed?

In this respect, a settlement agreement reached via a collaborative law process is no different from any other negotiated settlement agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. Any settlement agreement reached during the collaborative law process, the attorneys and the parties should recite the material facts upon which the settlement is based.

Is Everybody in the Lawyer’s Firm Precluded From Participating in the Litigation in the Event the Collaborative Law Process is Unsuccessful?

Yes. Only in this way can parties be assured that there is no benefit to be gained by counsel in failing to succeed with the settlement.

What is the Goal of Collaborative Law?

The goal or purpose of collaborative law is to offer lawyers and their clients a structured, non-adversarial alternative to an increasingly adversarial system of dispute resolution that is utilized in traditional litigation. It provides clients with the ability to retain highly qualified trained legal counsel to assist in the evaluation and resolution of a problem, without litigation. Collaborative attorneys possess unique skills that are utilized in achieving amicable resolutions to divorce cases.

How is a Lawyer’s Relationship With a Client Different in the Collaborative Law Process, and How Do Lawyers Prepare  Clients For It?

 First, the lawyer never ceases to be the client’s advocate and the client is so assured. By entering into the participation agreement the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). The objective is to discern and attempt to satisfy the interests of both (all) parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires and to listen carefully to those expressed by others. Collaborative lawyers remind and reassure their clients that by treating the other side’s interests with respect, they are serving their client’s goals and interests. Collaborative lawyers are trained in collaborative communication skills and will assist the parties in this endeavor.

Can a Lawyer Represent a Client Zealously If It Is Agreed in Advance Not To Go To Court?

By entering into a Collaborative Law Participation Agreement lawyers and their clients have thoughtfully agreed to limit the lawyer’s role within the contractual relationship to that of providing representation for settlement purposes only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the collaborative lawyer does not give up the role of advocate for his or her client. None of a lawyer’s duties or obligations to a client are affected by this limitation. In fact, the agreement to refrain from going to court often provides the required stimulus to effectuate an acceptable settlement agreement.

Why Must a Lawyer Resign If The Other Side Decides to Go to Court?

The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel and the litigants will be totally motivated and committed to ensuring that the process is successful. Thus, all participants are equally devoted to crafting the solutions to all of the outstanding issues. The manner in which the negotiation process takes place is positively affected by the certainty that lawyers will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to, ceases to be a viable tactic.

What if a Collaborative Lawyer is Approached by a Non-Trained Lawyer Wishing to Participate in the Collaborative Law Process?

The participation agreement allows a non-trained lawyer to enter into a participation agreement with a trained collaborative lawyer (and with their clients) when the Institute member is assured that the non-member can and will abide by the terms of the participation agreement, become educated about the collaborative law process as prescribed by the Collaborative Law Institute and agree to take part in future formal collaborative law training.

What Is The End Result of a Collaborative Law Case? How Are Interests, Rights, and Agreements Secured?

With the advice and assistance of counsel, parties can conclude their negotiations and make the necessary arrangements to finalize their divorce in an uncontested fashion. The agreement reached through the Collaborative process will be incorporated into the parties’ final judgment of divorce and will have the effect of a court order.

 Can a party quit during the process?

Nothing in the participation agreement precludes a party from terminating the collaborative law process and pursuing litigation. However, the client is advised at the outset of the collaborative process that doing so will require them to hire other counsel. Of course, the other side also will be trading their collaborative lawyer for a litigator.

For Whom is Collaborative Law a Good Idea?

Not every lawyer will want or be able to practice collaborative law. Not every case will be appropriate for collaborative law, nor will every client be interested in avoiding the adversarial contest. For many lawyers, however, the adversarial experience has led to a belief that the commitment of time, energy, and money to an adversarial case often does not achieve an outcome that provides a cost-effective or even a good solution to their client’s problems. Similarly, many prospective clients of legal services are looking for experienced legal counsel and skilled advocacy but do not want the stress and expense of litigation. For these lawyers and these clients, collaborative law is an excellent option.