Collaborative Law: The Newest Alternative to Problem Solving Your Divorce
What is Collaborative Law?
Collaborative law refers to an approach to dispute resolution in which the parties are represented by separate counsel who are specifically chosen because of their commitment to represent their clients in reaching a settlement without resorting to any form of litigation or court adjudication. This approach of legal services removes the disputed matter from the court room setting and treats the process as a joint problem to be solved rather than a fight to win and destroy.
The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interests of parties to commit themselves to resolving their differences with minimal conflict and no litigation. They seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well being of the parties.
Rather than assuming the conflict must adapt to the traditional adversarial litigation model, the collaborative approach is based on the idea that the process should adapt to the actual needs of the parties in conflict in reaching agreement. In the traditional competitive approach, where the parties objectives or strategies collide, it is assumed that the only way to move past, through, around or over the opposition, is to employ the power of the law-based procedures to make something happen. In the face of opposition from the other side, a lawyer looks to the power of the process and often overlooks the reverberating impact that process will have on the daily lives of the clients and their children. Furthermore, this power-based, competitive approach nurtures continued resistance as the participants have little or no reason to view the other side as anything but a threat and something to fear.
The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Initially, those needs fall into two categories: process needs and outcome needs. The process needs are determined by accepting the party in the emotional state in which they enter the process. That person may be experiencing a wide range of emotions such as, anger, hurt, distrust, bitterness, guilt and grief. These emotions may come with a wide range of personality characteristics such as, intelligent, unsophisticated, analytical, visual, needy or codependent. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the party which will allow that person to feel the issues are resolved. As we will see, these outcome needs are developed by analyzing the interests of the party and moving beyond the stated positions which have sustained the conflict. The core of the collaborative process is to facilitate the making of agreements, agreements which are based on addressing the needs and interests of all parties.
As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court.
Often parties in the Collaborative law process sign a contractual agreement which 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.
As part of the process all participants agree to insulate the children from the proceeding and to act in such a way as to minimize the impact of the divorce on them.
The parties agree to implement outside experts where necessary and desired in a cooperative fashion.(e.g. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys 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 addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value. Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture. Instead, they are reacting to psychological pains that they experiencing. These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues with the support and guidance of collaborrative lawyer working together, instead of against each other to help the family move on while adddressing the needs of relative parties.
Financial professionals may also be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
Most Cases Settle
The Statistics state that more than 98% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful events along the way. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom?
Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.
(Exerpts from mediate.com's FAQ's and Maury D. Beaulier's article on Collaborative Law)
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Adam J. Berner is a founding member of the New York Association Collaborative of Collaberative Professionals and the founding President of the North Jersey Collaborative Law Group.
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For further information or to schedule an appointment please contact Adam J. Berner at:
(212)721-7555 or (201)836-0777, or via email at Adam@MediationOffices.com