What is the Collaborative Process?
- Introduction to the Collaborative Process
- How the Collaborative Process Works
- The Roles of the Professionals on the Collaborative Team
Introduction to the Collaborative Process
The Collaborative Process is an out-of-court conflict resolution process in which the participants focus their efforts on reaching a mutually acceptable resolution. It is a team-based approach based on a set of principles that significantly changes the dynamics between clients and engages them outside of the courtroom in an open, supportive, lower-conflict process to find shared solutions.
Central tenets of the Collaborative Process include:
- A promise to reach a resolution without court intervention or the threat of court intervention.
- A pledge that if either party seeks court intervention both attorneys must withdraw from representation.
- A promise by all participants to negotiate in good faith by remaining open and flexible, disclosing all pertinent information and using constructive and respectful communication methods.
- An agreement that all communications that occur during, as well as all documents prepared in connection with, the Collaborative Process are inadmissible in any future court proceedings.
The concept of Collaborative Law was first conceived in 1989 by Stu Webb, a family law attorney in Minneapolis, who realized that court trials were inflicting greater injury to families than the underlying divorce itself. Since 1989, the practice of Collaborative Law has developed and grown and is now successfully practiced in 24 countries around the world. It is used not only in family law but in business, commercial, probate and employment law as well.
How the Collaborative Process Works
In the Collaborative Process, the parties work with a team of professionals to avoid the arbitrary and uncertain outcomes of Court litigation and to achieve a settlement that best meets the specific needs of both parties and their family as a whole. Focusing on settlement, the Collaborative Process offers a more healthy and effective forum for the resolution of a couple’s divorce issues. The goals of the Collaborative Process are to help the couple define and implement the settlement that best meets the needs of their family, and to help the parties learn new skills for more effective communication, conflict resolution and post-divorce co-parenting.
In order to accomplish these goals, professionals are available to work together as a team. A Collaborative Team can be any combination of professionals that the parties choose to work with to resolve their issues. The attorneys can help the clients decide which professionals are best suited to their needs. The professionals typically come from three disciplines: legal, mental health and financial.
The Roles of the Professionals on the Collaborative Team
A Collaborative attorney is an attorney with specialized training in the Collaborative Process who, when working on a Collaborative case, operates from a very different paradigm than a litigating attorney. Specifically, the attorneys join the clients in pledging not to go to court and not to threaten to go to court in order to gain advantage in the settlement process. If the client does nonetheless file in court, the attorney must withdraw, and the client must retain new litigation counsel.
Each attorney will:
- Help the client identify their needs, interests, goals, and the issues to be resolved.
- Help the client understand the legal options and ramifications of decisions.
- Help the client develop options that are creative.
- Refrain from using adversarial techniques.
- Work with the other attorney and the other team members to help the parties design an agreement that meets the unique needs of the family.
- Prepare all the documents that need to be filed with the Court once the parties have reached their agreement.
A coach is a licensed mental health professional with specialized training in the Collaborative Process. A coach’s role is different from that of a therapist in that the coach focuses on helping the parties achieve the immediate goal of reaching an agreement rather than determining the core causes of behavior.
A coach will:
- Help clients manage emotions so that they can more effectively problem-solve and focus on making decisions.
- Help clients improve their communication and conflict resolution skills.
- Help clients develop a parenting plan that provides a framework for co-parenting.
- Work with the clients, their attorneys and the other team members to improve communication, reduce misunderstandings and solve problems as they arise.
A child specialist is a licensed mental health professional with experience in child development, family dynamics, and separation and divorce, who has received specialized training in the Collaborative Process. The child specialist functions as an advocate and serves as the voice of the child (or children).
The child specialist will:
- Provide a safe place for each child to voice his/her concerns regarding the divorce.
- Help the parents understand the impact of the divorce on their children.
- Provide information to the parents and coaches about the developmental needs of the children so that these needs can inform the crafting of the parenting plan.
- Provide the parents with information and guidance to help their children adjust to the separation/divorce.
A financial specialist is a financial planner or accountant who has received specialized training in the Collaborative Process. The financial specialist assists clients in developing viable financial options as they make the transition to two households.
The financial specialist will:
- Collect and organize all the financial information relating to the parties’ income, expenses, assets, and debts.
- Help clients gain a clear understanding of their current financial situation.
- Educate clients regarding the short and long-term economic impact of settlement options being considered.
- Provide ongoing financial guidance, planning, support, and budgeting assistance throughout the process.
During the Collaborative process, the parties may choose to engage other neutral professionals, such as appraisers and valuation experts, to assist with specific tasks that require their unique expertise.