What is Collaborative Law?
The short version: Collaborative law is a method of dispute resolution for resolving issues that are between individuals such as a married couple going through a separation, a family trying to distribute an estate or business transactions that are not going smoothly. Both clients retain separate, specially-trained lawyers whose purpose is to represent his or her client in the client’s best interests. The process is structured to resolve the issues fairly and equitably without either going to court or threatening to do so.
Why might one choose Collaborative Law over Mediation?
In mediation, the participants negotiate for themselves with a neutral third party helping to guide the discussions. While the mediator may give legal information to the participants, he or she may not give legal advice to either. Further, some people, for various reasons, are not comfortable negotiating on their own behalf. For example, there may be an imbalance of power between the parties. Moreover, usually, these disputes involve an emotional element, and/or vulnerability concerns, where one party may make concessions or fail to speak up for themselves. In collaborative law, the lawyers take the lead in the negotiations.
Is Collaborative Law the best choice for me?
It isn’t for every client (or every lawyer), but it is well worth considering if some or all of the following are true for you:
(a) You want a civilized, rational discussion and resolution of the issues;
(b) You would like to keep open the possibility of a viable working relationship with the other party;
(c) You and your partner have children together and you want the best arrangement possible for the children and parenting;
(d) You want to protect your children from the harm and damage that can occur with litigation;
(e) You have ethical or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity;
(f) You value independence and autonomous decision making; you want to have control over the decision and do not want to hand over decisions about your finances and parenting arrangements to a stranger (i.e. a judge);
(g) You recognize the restricted and often unpredictable range of outcomes and “rough justice” generally available in the public court system and want a more creative and individualized range of choices available to you and your spouse or partner for resolving the issues.
Why is Collaborative Law such an effective settlement process?
Collaborative lawyers work together with the lawyers for the other side as a partner in a problem-solving process. The litigation approach, the win at all costs attitude, depletes your resources both emotionally and financially quite quickly and is also very unpredictable. In Collaborative Law you replace that with a methodology that is focused on the best solution for all parties involved. That said, Collaborative lawyers are still completely dedicated to helping their clients achieve the highest possible return for their clients in their settlement. However, Collaborative lawyers do not act as agitators, instigators or use inflammatory methods to pressure and intimidate the other parties. Nor do they take advantage of mistakes made by the other side. They encourage the highest good-faith problem-solving approach from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation that they participate in. Collaborative law offers the potential for creative problem solving that arises when two lawyers are pulling in the same direction to solve the same list of problems. Lawyers are natural problem solvers; however, in conventional litigation, they tend to pull in opposite directions. Collaborative lawyers succeed when they find solutions to their own clients’ problems combined with constructive ways of addressing the other party’s concerns that are also satisfactory to their client.
What kind of information and documents are available in the Collaborative Law process?
Detailed and complete disclosure is required. Both parties sign a binding agreement to disclose all documents and information that relate to the issues, and to do so early, fully and voluntarily. Hiding documents and stonewalling are not permitted.
What happens if one side or the other does hide documents or is dishonest in some other way, misusing the Collaborative Law process to take advantage of the other party?
This could happen. (It also can, and does, happen more frequently in litigation) What is different about collaborative law is that the collaborative law agreement requires the lawyer to withdraw if the client is being less than fully honest, or participating with less than good faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw, discontinuing representation of the client.
How do I know whether it is safe for me to work in the Collaborative Law process?
This process does not guarantee that every asset or every bit of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works hard to conceal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high and the results uncertain. Remember, you are probably the best judge of your spouse’s honesty in these matters.