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FREQUENTLY ASKED QUESTIONS
- What is Collaborative Practice?
- How does Collaborative
Practice work?
- What is the difference between collaborative law and traditional
divorce proceedings?
- Why might I want a professional team helping me?
- What if I want to quit during the middle
of the collaborative process?
- Will a settlement be fair?
- What happens if a settlement is not reached?
- How does the collaborative process discourage fighting between spouses?
- What is the difference between collaborative process and mediation?
- Will the collaborative process work for me?
1. What is collaborative practice?
Collaborative practice is a
dispute resolution process that provides an alternative to conventional
litigation. Both spouses are represented by counsel, but all agree, in writing,
NOT TO GO TO COURT. Both spouses promise to take a reasoned stand on every
issue, to keep sharing of documents informal and cooperative, to retain experts
jointly, and to negotiate in good faith. Collaborative law relies on an
atmosphere of honesty, cooperation, integrity and professionalism geared towards
the future well-being of the family.
2. How does collaborative
practice work?
Collaborative practice is
based on mutual problem solving and interest based negotiations. Each client is
represented by their own attorney, both of whom have pledged not to go to court.
The divorcing couple works together with a multi-disciplinary team of
professionals (individual divorce coaches, a neutral financial specialist and a
child specialist). all of whom assist in resolving all the issues in a
dissolution, from division of community property, spousal and child support, and
shared parenting responsibilities.
The collaborative team has an ABSOLUTE
COMMITMENT to settlement and is prohibited from entering any court based
negotiations, while allowing the divorcing couple to retain the decision making
power in all issues addressed. The clients select their collaborative team at
the inception of the case, and move through the process in a series of meetings,
some of which may include the entire team, but many of which will only involve
specific team members, depending on the issues involved. However, if a
settlement is not reached and this causes either spouse to seek court
intervention, both attorneys must withdraw from representation and the entire
team is disbanded.
3.
What is the difference between collaborative law
and traditional divorce proceedings?
In a conventional divorce, one spouse files a petition for dissolution in court
and sets in motion a series of legal steps, such as pretrial discovery, filing
of motions and a pretrial conference. Although the vast majority of cases
filed in court eventually are settled by agreement (as opposed to going to
trial), Couples going through a conventional divorce generally come to view each
other as adversaries, and their divorce as a battleground. The ensuing conflicts
can take an immense toll on the emotions of all participants, especially the
children. Collaborative law, by definition, is a non-adversarial approach
to divorce, not only because the negotiation process takes place without the
antagonism of courtroom conflict but also because all negotiations
occur collaboratively.
4.
Why might I want a team of people helping me?
Collaborative law allows
both spouses access to a variety of experts, to help facilitate the best
possible outcome for each individual, as well as insuring a healthy future for
their children. Mental health professionals act as divorce coaches, smoothing
the emotional minefields that are often heavily laden in any divorce. Child
specialists give the children a voice in the process, and financial specialists
act as neutrals to assess the financial impact of settlement options
5. What if I want to quit during the middle of the collaborative process?
At any time, either spouse
may choose to leave the process and pursue litigation. This will require both
to find new counsel.
6. Will a settlement be fair?
Collaborative practice is
designed to empower the clients to fashion agreements that address their unique
concerns and produce results more creative than, and superior to, those
experienced by clients in the conventional adversarial process. The goal is to
enable both spouses to reach a fair and reasonable settlement that addresses and
meets the needs of both clients, rather than, for example, the most aggressive
client.
7.
What happens if a settlement is not reached?
If the clients cannot reach
settlement with the help of their collaborative team, there may be an
exploration of whether they may want to try an alternative way to resolve their
issues, for example, mediation, neutral experts, arbitration or a private
judge. If not, the collaborative team is disbanded, the collaborative
attorneys withdraw, and the clients would proceed to obtain litigation attorneys
to prepare their case for trial.
8.
How does the collaborative process discourage
fighting between spouses?
Collaborative professionals
are trained to help clients deal with their issues and emotions in joint
meetings and conference calls. They understand how to help clients express
authentic hopes and needs effectively. They ask questions that keep the
conversation focused on mutually acceptable workable outcomes. Collaborative
professionals also model appropriate behavior; instead of confronting others in
the room, they establish an atmosphere of mutual respect and ensure that
everyone present sustains the respect throughout the process.
9.
What is the difference between collaborative process and mediation?
Both the collaborative
process and mediation rely on the voluntary and free exchange of information and
a commitment to resolutions that respect the clients' shared goals. In
mediation, an impartial third party or mediation team, facilitates the
negotiations of the disputing clients and tries to help them settle their case.
However, the mediator does not provide legal representation to either client,
and cannot be an advocate for either side. The clients in mediation can have
their own separate counsel present at the mediation sessions, or consult with
counsel between mediation sessions. In the collaborative process, the clients
have their attorneys with them during the negotiation sessions. Although there
is no mediator present, the collaborative team facilitates a commitment towards
settlement.
10.
Will the collaborative process work for me?
If these values are important to you, then the
collaborative practice is likely to be
a suitable option:
- I want to remain a tone of respect, even when we disagree.
- I want to prioritize the needs of our children.
- My needs and those of my spouse require equal consideration,
and I will listen objectively.
- I believe that working creatively and cooperatively solves issues.
- It is important to reach beyond today’s frustration and pain to plan
for the future.
- I can behave ethically towards my spouse.
- I choose to remain in control of the divorce process with my spouse,
and not to relegate it to the courts.
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