What is Collaborative Law?
by Maury D. Beaulier
Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to “trouble shoot and problem solve” rather than to fight and win.
As part of the collaborative law method, both parties retain separate lawyers whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.
Each party in the Collaborative law process signs a contractual agreement which include the following terms:
Disclosure of Documents.
Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
As part of the process all participants agree to insulate the children from the proceeding and to act in such a way as to minimize the impact of the divorce on them.
The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (e.g. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
The primary goal of the process is to work toward an amicable solution and to create a “win-win” situation for all.
Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the lawyers must withdraw and the process begins anew in the court system.
One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value. Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture. Instead, they are reacting to psychological pains that they experiencing. These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.
A team of professionals is assembled to help the parties understand and resolve their disputes in many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.
A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.
Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
Most Cases Settle.
The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn’t it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom?
Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.
For more information on Collaborative Law please feel free to contact us at Sawatzky Law or click on the Resources link at the top of this page.