Civil litigation is expensive, time consuming, and emotionally draining; but it does not have to be this way. Many forms of Alternative Dispute Resolution (ADR) exist to avoid going to court, save time and money, and reduce the stress of legal proceedings. One such form of ADR is collaborative practice. Collaborative practice opens the door to a more holistic form of representation.
In addition to the general ADR benefits, collaborative practice also encourages mutual respect, keeps the parties in control of the process and seeks to solve problems through interest-based discussions to find mutually agreeable solutions that are the most efficient and create the best all around agreement. The collaborative approach shifts the focus of the representation to the parties’ underlying interests, needs and objectives, finding the best route to satisfy the parties’ mutual goals while following all ethical obligations.
But first, what is Collaborative Practice?
Collaborative Practice is a form of ADR that requires transparency between the parties, attorneys, and any coaches (mental health professionals to guide the parties), financial specialists, child specialists and any other “team” members, an agreement not to litigate, and a commitment to respect the shared goals of the parties. The means of reaching the end goal of a divorce is to cooperate to find the best solution for every issue involved, rather than the best that any one party could get from a judge.
Sounds great, so what’s the catch? To start a collaborative process, the parties, attorneys, and rest of the team must sign a participation agreement stating that each professional team member’s participation in the process is limited – that is to say that any attorney a party hires for collaborative may only participate as a collaborative attorney. If the process fails and the case proceeds to litigation, the parties must find new counsel, and the collaborative attorneys must transfer the case to the new attorneys, and most of the collaborative process remains confidential. This limitation applies not only to the attorneys, but entire professional team including coaches, financial experts and child specialists, if retained.
How do you tell if collaborative is the right method for a case? The crux of collaborative practice is trust and transparency within the team; therefore, one spouse cannot intimidate the other. Such a relationship could lead the intimidated spouse to simply agree with the other, rather than voicing his/her own opinion, thoughts and interests. In a setting where sharing is so important, the intimidation must be overcome. Additionally, the parties must be reasonable and willing to see the process as something other than a ‘if you get this, then I get that’ system. Rather than breaking down each aspect of the marriage and splitting it between the spouses, the collaborative approach finds the best solution for each aspect and the team works to combine the best solutions and the parties’ goals into one agreement.
***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***