An emerging trend in the field of alternative dispute resolution, the collaborative law concept is a structured and cooperative out-of-court approach to problem-solving. It allows those in a legal dispute to work together with their attorneys toward a solution in a positive, results-focused setting.
In the realm of family law, by committing to the collaborative law (or “collaborative divorce”) process, spouses and parents can finalize a divorce and resolve any related support and property disputes without stepping into a courtroom. The process can be less hostile and less expensive.
The following is an overview of the collaborative divorce process, as opposed to the more adversarial — and often contentious — court process.
Background and Development
The collaborative law process was founded in the early 1990’s by Minnesota family law attorneys who were looking for a more civil, straightforward and fairer approach to divorce cases. Today, a large number of national, regional, and state collaborative law groups exist, in addition to the recently formed International Academy of Collaborative Professionals.
Most of these organizations focus on the application of collaborative law principles to family law (typically divorce and related disputes). However, recent trends show an increase in the use of the collaborative process to resolve disputes that arise in employment and business relationships.
The Collaborative Divorce Process
In the family law setting, the hallmark of the collaborative law process is the participants’ commitment to resolving a divorce and all related support, custody, and property disputes in a constructive and reasoned atmosphere. This commitment is made in a written agreement entered into between the spouses, in which they promise to use good faith and fairness in negotiating a resolution, and to disclose all information and documents relevant to the issues at hand.
The spouses’ attorneys demonstrate their commitment to the process by adhering to a fundamental collaborative law principle. This requires that if either party terminates the collaborative process in favor of traditional litigation, then the collaborative law attorneys must withdraw from the case. In other words, once the collaborative process begins, if one or both of the spouses decide to pursue litigation, different attorneys must be hired to represent the spouses during litigation.
In the collaborative law setting, both spouses and their respective attorneys meet in a neutral setting such as an office or conference room and begin the negotiation process. The key to these negotiations is that all persons present — each spouse and their attorney — are free to (and in fact are expected to) participate in a positive and open discussion with an agreeable resolution as its ultimate goal.
The setting differs from similar alternative dispute resolution (ADR) methods like arbitration and mediation. There is no neutral third party at the center of the collaborative process, just the parties and their attorneys. The attorneys participate in the collaborative process as representatives of their respective clients, but also act to support and encourage an agreeable solution for all parties and families involved.
As negotiations progress the parties sometimes discover they need different sources of assistance. They might agree to hire counselors or experts to assist with accounting matters, asset valuation, or other technical issues that often arise during discussion of support obligations and property division.
In the majority of collaborative law negotiations, the parties are able to arrive at a settlement agreement resolving all disputes at issue. For example, spouses who decide to use the collaborative process to finalize a divorce may complete successful negotiations and enter into a comprehensive written agreement. The agreement validates the divorce and states the arrangements related to issues like child support, custody, visitation, and division of property.
Benefits of Collaborative Divorce
In addition to providing a cooperative approach to problem solving, the collaborative law process offers a number of benefits to people in a family law situation. Although individual circumstances will vary, collaborative law may provide a quicker and less expensive method of resolving a dispute.
Taking divorce to court generally means parties spend money for each side and its attorney to find information that is otherwise shared during the collaborative process. Sometimes, however, the collaborative process can be more expensive if the parties are unable to complete the process and then decide to pursue litigation in the end anyway.
In addition to money and time saved, by avoiding family law litigation, collaborative law participants and their families may be spared a certain amount of stress on themselves and on their family relationships. The details of a divorce tend to stay more private through ADR methods, which is another benefit.