Collaborative family law is a unique field that has been around for the past 20 or so years. Its philosophy is based upon a more respectful and dignified divorce process, taking into consideration the best interests of ALL family members at ALL times. Collaborative divorce offers many benefits over traditional divorce, including:
- the possibility of saving money on attorneys fees compared to litigation conflict
- negotiating a resolution at a pace that works for the parties, not dictated by the court
- talking about compromise without using the threat of battling in court
- focusing on creative problem solving
- attacking the problems, not each other
As part of the Collaborative law case, each party retains a Collaboratively-trained attorney whose sole job is to help the parties settle the dispute without resorting to litigation. Each party also retains a divorce coach – a mental health professional who helps each participant deal with the emotions that always accompany a divorce. The coach is not there to provide therapy, just support and insight into the process. In cases with kids, a child specialist will be employed to gain insight into how the children are perceiving the divorce and divorce process, their fears, preferences, and best interests, giving the child a voice but not putting him/her in the conflict. And finally, a financial specialist may be involved to review the parties’ finances, value assets where appropriate, and suggest options for property division/support which will benefit everyone. No one may litigate in court. If any party opts out of the process because of insurmountable impasse, the collaborative case terminates and both attorneys and all team members/experts are disqualified from any further involvement in the case. The parties must then start over with litigation counsel, who will represent them in an adversarial proceeding.
Each party in the Collaborative law process signs a contractual agreement which may 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 to avoid derogatory or demeaning comments.
- Sheltering Children.
As part of the process all participants agree to protect the children from the bitterness associated with divorce, and to act in such a way as to minimize negative impacts on them.
- Sharing Experts.
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, child specialists, divorce coaches, vocational evaluators, financial specialists).
- Win-Win Solutions.
The primary goal of the process is to work toward a solution both people can live with and to create a “win-win” situation for all.
- No Court.
Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys and all experts 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 adequately addressed by the legal system. Parties who dispute in court are rarely fighting over the assets or the best interests of the kids; they are more likely acting out of emotions that they are experiencing, such as guilt, fear, anger, vengeance, resentment, martyrdom, etc. These emotional issues are generally ignored in the litigated process. By contrast, the Collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of the 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 may be legal, financial or emotional, so the team may include: divorce coaches for each party, neutral financial advisors and accountants, parenting/child specialists, vocational experts, appraisers, and real estate professionals if needed.
The child specialist plays 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 often meets with the children of divorcing parents, as well as the parents themselves. It is the specialist’s 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.
Most Cases Settle. Divorce data suggests that more than 90% of all divorce cases are resolved without a trial. However, in the litigated system, that resolution often comes more than a year after the divorce was commenced, usually at the last minute after most of the cost has already been incurred, 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? And before the money is spent on attorneys and experts who may be fighting the emotional war of their clients? While Collaborative law will not work in every case, in the cases where Collaborative law has been used –even if reluctantly — there have been better settlements reached at less than the normal cost associated with litigated divorce. And most clients agree that the emotional costs saved were incalculable. For more information about this process, please feel free to visit the website of the Collaborative Family Law Council of Wisconsin information page, or the international website of the International Academy of Collaborative Professionals. For a recent article on how clients are equally protected in the Collaborative process, go to this link.