COLLABORATIVE LAW
What Is Collaborative Law?
Collaborative Law is a new dispute resolution model in which both parties to the dispute retain separate, specially-trained lawyers whose only job is to help them settle the dispute. If the lawyers do not succeed in helping the clients resolve the problem, the lawyers are out of a job and can never represent either client against the other again. All participants agree to work together respectfully, honestly, and in good faith to try to find "win-win" solutions to the legitimate needs of both parties. No one may go to court, or even threaten to do so, and if that should occur, the Collaborative Law process terminates and both lawyers are disqualified from any further involvement in the case. Lawyers hired for a Collaborative Law representation can never under any circumstances go to court for the clients who retained them.
What is the difference between Collaborative Law and mediation? In mediation, there is one "neutral" who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.
Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.
How Does It work?
Our usual way of communicating is in the form of 4-way conferences---the parties and their collaborative lawyers sit around a table and discuss the issues and seek ways to get agreement. I like to say that we put the issue we're working on in the center of the table, and we all focus on ways to resolve it---rather than seeing the other party as the problem and attacking him or her.
Question: How does it work to get the parties together in the same room?
Answer: In most cases it works wonderfully. In an adversarial divorce practice, attorneys tend to resist the idea of getting the parties together when there were problems. Instead, they would bring motions to have the Court solve the problems. Now when a problem comes up a collaborative lawyer's first thought is "We've got to get together and solve this!" Something almost "magical" sometimes happens in the 4-way process. This is hard to put into words, but a "shift" of some sort occasionally takes place in the energy whereby the lines between the "side" gets blurred and parties start seeing things more from their spouses position. For example, in one case where that happened, the husband was looking at the wife's budget sheet and he said "You're not going to have enough money, I need to give you an extra $200 per month." The wife thought a minute and said "I think I'm supposed to say that."
Question: Say a little more about this energy.
Answer: We're strong believers in the importance of "setting a tone" of energy in the conference room--keeping a good energy with everyone monitoring it to the best of their abilities. A clean energy results in good decisions, a negative energy creates a climate for tension and dissent. Collaborative lawyers perform a valuable function here in "modeling" appropriate behavior, rather than picking up on and magnifying negative client emotional response. (Of course, it might be the client doing the modeling and the lawyer who is "caught up.") .
The next step is for one of the parties' lawyers to draft legal documents to convert their informal agreements into legally binding ones which are then submitted to the Court for approval usually without any Court.
Is It Right For Me?
It isn't for every client (or every lawyer), but it is well worth considering if some or all of these are true for you:
- You want a civilized, respectful resolution of the issues.
- You would like to keep open the possibility of friendship with your partner down the road.
- You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with litigated dispute-resolution between parents.
- You and your partner have a circle of friends and extended family in common that you both want to remain connected to.
- You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
- You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.
- You value control and autonomous decision-making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).
- You recognize the restricted 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 your issues.
- You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
- You understand that conflict resolution with integrity involves achieving not only your own goals but finding a way to achieve the reasonable goals of the other person.
How Do I Find a Lawyer?
Collaborative Lawyers have different views about this. Some will "sign on" to a collaborative representation with any lawyer who is willing to give it a try. I believe that is unwise and I do not do that. Trust between the attorneys is essential for the Collaborative Law process to work. Unless the lawyers can rely on one another's representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. Unless I have confidence that the other lawyer will withdraw from representing a dishonest client, I would not sign on to a formal Collaborative Law process (involving disqualification of the lawyers from representation in court if the Collaborative Law process fails). Similarly, Collaborative Law demands special skills from the lawyers--skills in guiding negotiations, and in managing conflict. These are not the skills a conventional lawyer learns. Without them, a lawyer would have a hard time working effectively in a Collaborative Law negotiation. And some lawyers even collude with their clients to misuse the Collaborative Law process, for delay, or to get an unfair edge in negotiations. For these reasons, I would not sign on to a formal Collaborative Law representation with a lawyer inexperienced in this model. That doesn't mean I could not work cordially or cooperatively with that lawyer, but I wouldn't sign the formal agreements that are the heart of Collaborative Law until I had a track record of mutual trust with the lawyer.
What Happens If We Don’t Settle?
In the event that the parties are unable to arrive at a settlement through the collaborative-law approach, the collaborative lawyers withdraw from the case and the parties are free to retain trial attorneys to pursue their matter in court. The result is that the parties will have had the best representation for each phase of their proceeding.