What Is Collaborative Family Law?
Collaborative law, or collaborative practice, was born in the 1990s in the United States when participants in the family law process became frustrated with the inefficiencies and unpredictability of the traditional court system.
This concept has evolved as an alternative to family law disputes.
It is a team-based approach with a commitment between the parties to avoid court.
Working With A Divorce Lawyer
Generally, two spouses dissolving their union through the collaborative process each retain their own separate divorce lawyers and jointly retain a team of experts who are specifically tailored to assist in the resolution of that family’s specific issues.
For example, a couple who are separating but own a business together that chooses to commit to the collaborative process, may each hire their own lawyer and together hire a business valuator who will determine the value of their business.
A family with relatively few assets but more complex parenting challenges may opt to enter into the collaborative process with their respective lawyers and a parenting coordinator or child therapist that can make professional and unbiased recommendations on what is in the best interests of the child.
Agreement Not To Go To Court
At the inception of the collaborative process, the parties, and particularly, the lawyers, sign an agreement promising not to go to court to resolve the matter.
What Happens If Negotiations Fail?
As a result, if negotiations fail, the lawyers representing the parties during the collaborative process must withdraw if one person escalates the matter into litigation.
This would mean that each party will then have to hire a new lawyer and begin with a more traditional negotiation process which would likely involve the court.
The process itself differs from case to case, but in large part involves a series of team meetings during which small, specific issues are discussed and hopefully resolved.
The goal is to collaboratively, amicably and respectfully arrive at a global settlement that becomes an enforceable separation agreement.
Collaborative Practice Vs. Mediation – What’s the Difference?
The concepts of collaborative family law and family law mediation are often confused.
While both processes fall under the umbrella of “alternative dispute resolution” (ADR), the processes themselves differ significantly.
In mediation, parties may choose to be represented or not and hire a neutral third party to assist them in resolving issues that are in dispute.
In the collaborative process, each party must be represented by counsel and there is no neutral third party (unless that becomes necessary) to assist in communication and dispute resolution.
Does the Collaborative Divorce Process Work?
There are no hard and fast requirements for participating in the collaborative process in terms of negotiating a separation agreement or obtaining a divorce.
The parties are required to enter into a participation agreement that states that nobody will escalate the matter to court and that if the matter does escalate, the current lawyers representing the parties are required to withdraw.
Retaining a vetted lawyer who you know to be knowledgeable in the law and settlement oriented ought to be a requirement in the collaborative practice, but for the time being, while lawyers can become accredited through various organizations, there are no regulations regarding who can represent individuals in this type of matter.
If you feel that you and your partner are amicable, you share a balanced power dynamic and can benefit from this type of dispute resolution, then you may wish to discuss it with him/her to determine if they’re in agreement.
Advantages of the Collaborative Divorce Process
The collaborative process can be cost-effective and efficient for separating many couples.
When a couple is committed to separating amicably and can work, in good faith, together towards the mutual goal of a fair and even resolution, collaborative law can be a cost-effective solution, as it brings a team of like-minded individuals together to solve a problem with greater efficiency and fewer experts than the traditional court process.
The collaborative process allows families with unique needs to achieve solutions that are specifically tailored to them.
When executed properly, the process is cost-effective, productive, and can obtain mutually beneficial results for the parties involved while minimizing harm to the children.
It can also be a much less stressful process, as it emphasized cooperation and mutual respect when working together to achieve a common goal.
Additionally, participants in the collaborative process avoid time consuming and unpredictable court schedules and rulings, which often saves money in terms of legal fees incurred, workdays missed to attend court, etc.
Finally, participants in the collaborative process retain more of their privacy than traditional litigants since the details of their matter are not published in the public record.
These couples also retain decision-making rights, as opposed to leaving decisions in the hands of the court.
Disadvantages Of Collaborative Family Law
The collaborative process is not right for everyone and when used under the wrong circumstances, can waste significant time and resources.
Oftentimes, individuals commit to the collaborative divorce process without understanding what it means and spend tens of thousands of dollars before realizing that the opposing party is operating with a lack of good faith, trying to slyly obtain an advantage and has no intention of collaborating towards a quick, meaningful and fair resolution.
An experienced lawyer will screen their prospective client for multiple forms of power imbalances prior to committing to engaging in the collaborative process.
This means of alternative dispute resolution is not meant for couples with a history of abuse, be it emotional, physical or financial.
The collaborative process is also not for families with straightforward issues: for families with relatively few assets and only a parenting schedule to ascertain, it is much more efficient for each party to retain settlement-oriented counsel and assist their respective lawyers to negotiate a comprehensive separation agreement.
The largest disadvantage to the collaborative process is that if negotiations fall apart, all of the money that has been invested in the process is lost: the parties each need to retain new counsel that will need to familiarize themselves with the matter if the matter needs to escalate to court.
This is why it’s important to really understand the process and to take a realistic look at your circumstances.
Is the Collaborative Process Right for my Divorce?
Maybe. Each separation and divorce is unique in its set of circumstances and points of contention.
A skilled family law practitioner will be able to listen to the issues present in your matter, ask the right questions to determine the best course of action, and implement the most efficient means of reaching a resolution for your particular matter.
How Hummingbird Lawyers Can Help You
The Hummingbird Lawyers LLP family lawyers are uniquely focused on resolving clients’ matters with maximum efficiency and minimal stress: our experienced divorce lawyers are thoughtful and careful in implementing strategies and will always recommend the most effective course of action for a specific client’s situation.
Scheduling a consultation with one of our family lawyers will ensure that your story is heard, the right questions are asked to determine whether the collaborative law process is right for you, and a plan of action is recommended.