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FAQ's |
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Collaborative Law is a means by which parties resolve disputes respectfully and creatively in a safe process.
The power over the parties’ lives remains with the parties; not counsel or the court.
Each party is represented by counsel who are ‘collaborative counterparts’; not opposing counsel.
The parties and counsel sign a statement of principles and guidelines, setting forth the expectations of the participants to act honorably and courteously, and not utilize court intervention.
Through a series of four way meetings, the parties identify and address their concerns and issues, and craft a resolution that works for them.
Other jointly chosen experts, when appropriate, assist the parties. Examples: creating a parenting plan for their children, determining the value of assets, assessing tax implications, improving the parties’ communications so the four-way meetings are more productive.
The final document is then sent to Court for the judge’s signature.
If, for whatever reason, a party wishes to terminate the Collaborative Process, the case moves into the litigation arena. Absent the written agreement of both parties, none of the work or negotiations in the collaborative process can be utilized in the litigation. The parties also must retain new counsel. |
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The parties utilize the services of one lawyer to assist them in reaching an agreement.
Mediation works best when both parties have roughly equal access to the information and the ability to understand it, equal bargaining power and ability, and when they are reasonably comfortable being in the same room. The mediator is not responsible for protecting the rights of either party, and cannot mitigate against a power imbalance.
Sometimes, during the mediation process, each party will have a reviewing attorney with whom he or she consults throughout the process. Generally, after the agreement has been drafted, the mediator requests/requires each party take the agreement to an attorney for review so that each client can be sure the agreement reflects his or her understanding of its terms and conditions.
When approved, the final agreement is submitted to the judge for signature and becomes a court order.
If the Mediation does not achieve a final resolution, the parties may proceed either through the Collaborative Practice process, or by Litigation. The discussions and positions raised in Mediation are confidential and cannot be used in Litigation.
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The Court controls the timing, the process and the outcome.
Each party may be self-represented or have counsel.
Good faith in dealing with the opposing counsel is not required.
Achieving a final decision is often a matter of several court appearances, which require significant preparation, and are always stressful.
Because of waiting time in court and formality of the discovery process (i.e. getting needed information) litigation is generally more expensive than collaborative, or mediation.
A judge, who may or may not have extensive experience in family law, but
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What is Counsel’s role and responsibility in the traditional, mediation or collaborative process?
Traditional:
To “get the best” for you within the framework of the law. To speak for you to ‘the other side’ and the court. To evaluate your options and present them to you. To ‘package’ the situation, information, arguments and case as best possible for your position. To use legal tools, such as extensive discovery, depositions, etc. to ensure you’re not being cheated. To determine the timing and style of presentation of the case. To prepare the case for trial–providing the court will all require (and often extensive) papers. To try the case, if necessary, before the judge. To prepare all agreements and/or documents setting forth the judge’s decision.
Mediation:
To assist you in creating the needed information for the dissolution process (but without doing any independent review of the data presented.) To assist you in determining a range of possible alternatives so you and the other party can select the best mutually-acceptable alternative. To draft the documents reflecting your agreement, and the other necessary court papers.
Collaborative:
To help you articulate your highest values and goals, and your greatest concerns. To work with you, the other counsel and your spouse to maintain a climate of emotional safety, openness and trust. To be (with the other attorney) a guardian of the process–to help you stay on course in the face of psychological and emotional stress To inform you of the range of options allowed by the law. To assist you in gathering and evaluating all information that may be relevant to your co-parenting and/or financial decisions. To work with the other counsel to assist you and your spouse to chose and instruct jointly any experts needed to provide specialized information that would help you make more informed and better decisions. To assist you and your spouse in brainstorming all aspects of your matter in order to create new possibilities that might better fit your family’s needs. To draft the mutually acceptable agreement and other documents for the judge’s signature.
What are Your responsibilities as the client in the traditional, mediation and collaborative process?
Traditional:
To trust counsel to be your ‘mouthpiece’ to speak for you to the other counsel and/or the Court instead of your being able to speak for yourself. To follow counsel’s instructions. To provide legally required information as requested by counsel and/or required by the other party and the court. To follow the court’s timetable and schedule. To wait reasonably patiently at court waiting for your matter to be called; then pay for the time spent waiting. To hire experts when necessary to be able to present your position in contrast to the position being presented by ‘the other side’. To choose between the options presented by counsel. To listen carefully when counsel tells you about the conversations he/she has had with the other attorney. To submit the matter (if all negotiations have failed) to the court for a decision. To follow the court’s decision.
Mediation:
To provide legally required information. To review the information provided by your spouse. To meet with the mediator and your spouse to create and discuss alternatives. To consult with another attorney if you wish legal advice during the process because the mediator works for both clients, and thus cannot give legal advice. To present your views to your spouse, no matter how emotionally difficult that may be.
Collaborative:
To be able and willing to look to the future and not be stuck in the past. To recognize that a ‘win’ is a resolution you and your spouse are willing to sign, one that works best for you both and for your children. To utilize your highest values, creating and working in an atmosphere of trust. To provide, promptly and pleasantly, all possibly relevant information, whether or not legally required. To choose jointly all ‘experts’ needed to provide information to help you and your spouse make informed decisions. To articulate respectfully your cares and concerns. To enter into only good faith negotiations. To participate in the choosing of the pace and the priorities of the process. To be an active participant and equal decision-maker in every part of the process and the outcome.
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Which approach: Traditional, Mediation or Collaborative may be best for you?
1. If you have:
Domestic Violence, Substance Abuse, Concerns about your spouse ‘pulling a fast one’ with the children or finances Inability to talk reasonably with your spouse–even if supported by counsel.
Traditional because you’ll need the Court’s protection and the judge to make the decisions.
2. If you have:
Roughly equal access to the financial data and the ability to understand it, Reasonably equal ‘bargaining power’ vis-a-vis your spouse, Reasonably comfortable being in the same room with your spouse, Willingness to consult with ‘outside counsel’ if you’re uncomfortable with the process.
Mediation: may be appropriate. (Note, all discussions in mediation are forever confidential and cannot be used should the matter fall out of mediation–and, rather than entering the collaborative process, move into litigation.)
3. If you have:
A wish for emotional and legal support going through the process, A view that four creative minds (two of which are objective) are better than two in creating an outcome uniquely tailored to meet the needs of your family, A commitment to work collaboratively and respectfully to get through the process with the best resolution and least grief for all concerned. Collaborative is appropriate. (Note, everything in the collaborative process is forever confidential absent the written consent of both parties. If the matter falls out of collaborative into litigation, counsel are barred from participating further in any way–except to assist the client in getting another lawyer.)
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