Collaborative Law FAQs

Helping individuals reach the best resolutions in the most difficult of situations.

How is collaborative law different from mediation?

While the goal of Mediation and Collaborative Law are the same, to problem solve and work out an agreement together, the process of getting there is very different. This difference lies primarily in the configuration of professionals. Each side has an attorney who advocates for him/her separately. Each party meets with his/her attorney extensively to prepare for when all four parties meet together to work out an agreement. Additionally, there are often other professionals brought in as part of the team to help the attorneys and the parties work out an agreement. Often mental health professionals can be brought in to meet with the spouses or the children, a financial professional can help define the value of the assets, sometimes even a mediator will be brought in. The important thing to remember is that everyone works together to reach a solution that is best for everyone affected.


How is Collaborative Law different from traditional legal representation?

The two representations are similar in that each side has their own attorney representing them and advocating for their needs, however that’s where the similarities end. In traditional representation, each attorney is advocating for his client, working against the other party to get his client the best deal and get the other side the worst deal. In Collaborative Law, while each attorney is advocating for his client, the goal is to work with the other side to reach an agreement that is best for everyone affected.

In traditional representation, there is always an option to go to court and let the judge decide what is going to happen, whereas Collaborative Law assumes that you will reach an agreement and are therefore not allowed to court. By definition of collaborative, collaborative attorneys have to sign a document that states they will not represent their clients in court if their clients decide to go to court.

Most traditional divorce attorneys will not go to court, but it is still often used as a threat if an agreement can’t be reached. Traditional attorneys won’t work as hard to reach an agreement out of court because they always have that option. They won’t work as hard, but they also have a different skill set which doesn’t include the ability to work out an agreement where both parties are happy.

The hallmark difference is definition of success. For collaborative law, success is realizing how decisions will affect everyone, kids and the other spouse, immediately and down the road and if that image is a good one. The whole process is seen through a different frame.

A collaborative attorney will provide honest feedback to his client throughout the negotiation process. He is not going to act as a yes-man when it seems as though his client is being unreasonable. Additionally, throughout the negotiation, there is complete transparency from both sides.


How are you an advocate as a collaborative attorney then?

There are two ways of defining what it means to be an advocate. The first way is to look at what’s good for your client as an unconnected individual and the second way is looking at what’s best for you client in the context of his friends and family and how the decisions you advocate for today will impact them tomorrow and down the road. Collaborative law focuses on problem-solving advocacy and ensuring that you, your kids, and your spouse, will have a positive outcome.


What is the role of other professionals? Why are they necessary?

It’s important to realize that a divorce is not just a legal transition, it is a financial, emotional, and parenting transition as well. It is a challenging process and other professionals with different expertise can help the family get through all the different aspects in the best way possible. If an attorney notices that the children seem to be having a hard time with the divorce, he might suggest bringing in a child therapist or a divorce coach for the parents to help them address their children’s needs effectively. If there is a family business or some other asset that is hard to evaluate, a financial professional may be brought in. Collaborative Lawyers want to help the family as best as they can, and if they think someone else will be better equipped to deal with a specific aspect, they will recommend involving them in the process.

Any professional brought in to a mediation or a collaborative law negotiation is trained in mediation.


As Collaborative Divorce grows, a lot of people claim to be able to do it, how do I know they are capable though?

The first thing to look at is whether they are a member of a collaborative organization, these organizations require training in collaborative law. This also applies for mediators and mediation organizations.

In the tri-state area, you can find out if the attorney is a member in good standing in the organization. It is important to be a part of a community of collaborative lawyers so that attorney can continue learning best practices and staying up to date on various techniques to be able to best help you, the client.


How does the cost of Collaborative Law compare to the cost of traditional divorce?

Collaborative Law costs more than mediation because there are more professionals engagements. You meet with your lawyer extensively to prepare for the negotiation with your spouse and his/her attorney and then you meet with them to come to an agreement. In mediation, you only meet with your mediator together and work it all out together, so there is only one professional and fewer sessions. However, because everyone is working together in a focused way, there are fewer sessions in collaborative law than traditional representation. The process is less adversarial because there is never a threat of court and you won’t waste time arguing. Time here is focused on solving the problem and not dealing with the legal aspects of court

If the attorneys decide to bring in other professionals, the cost will rise, but those things would need to be addressed no matter how you choose to divorce so bringing them in should actually help you get to a quicker and better resolution.


Why would I opt to do Collaborative Law if Mediation is less expensive?

While mediation is a great tool, it is not right for everyone, though it can be successful for many. If someone doesn’t feel they can advocate for themselves well or if the couple is nervous that there is a risky dynamic or a volatile personality where mediation could trigger an explosion, collaborative law may present a better option because each attorney can handle the personality ahead of time so as not to have any explosions during the negotiations.


When we have a final agreement – are you able to file the divorce papers in court?

Once an agreement is signed, the lawyers can put through the uncontested divorce in court. In NJ, this requires the couple to appear in court but the decisions have already been made and the court won’t be deciding anything further.


What happens if one party is dishonest and tries to misuse the system?

By signing the Participation Agreement, everyone agrees to behave in a respectful manner and to being open and honest throughout the negotiation. If there is doubt as to what someone is saying or presenting, your attorney can request documentation from an outside party to corroborate what the other party said. However, when a couple chooses to settle their divorce through collaborative law, you are open to negotiating in an open and honest way in order to reach a settlement faster.


What if we hit an obstacle that prevents us from reaching a decision?

Depending on the nature of the obstacle, it may help to bring in other professionals to help resolve the issue. If, however, it becomes impossible to reach an agreement, the couple can go to court but they will have to retain different attorneys to do so. Your collaborative attorneys cannot represent you, nor can they be a witness in a trial.

All of this being said, a collaborative attorney has a special skill set which enables him to find a solution even if it is incredibly difficult. A collaborative attorney is especially motivated to do this because he is not allowed to go to court.

Schedule an Appointment Today

For further information or to schedule an appointment, contact the Berner Law & Mediation Group.