There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, each attorney works to convince a judge that his or her client’s version of reality is true. Often, this includes contradicting, or even disparaging, the other party, and challenging that person’s perception of reality. Trial is often compared to a battle, in which the best side wins. However, all attorneys understand that the "best side" doesn’t always win and that in many disputes, the party who "wins" at trial still loses in other ways.
Both the Collaborative Process and mediation are committed to the voluntary and free exchange of information and a focus on a respectful and fair resolution that addresses the needs of both parties. In mediation, there is one “neutral” professional who helps the disputing parties try to reach an agreement. The mediator cannot offer legal advice or advocate for either party. If one party becomes unreasonable, lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced. If the mediator tries to address the the problem, the mediator may be seen by one side or the other as biased. If the mediator does not find a way to resolve the problem, the mediation will fail or the agreement will be unfair.
The Collaborative Process is designed to deal more effectively with these potential problems, while maintaining the same commitment to reaching a settlement. Each party has immediate access to well-qualified legal advice that is built into the process. Even when one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the use of the Collaborative Team (Collaborative attorneys, coaches, a child specialist, a financial specialist). All team members share a mutual commitment and responsibility to collaborate with each other and to insure that the process stays positive and productive.
A Collaborative Team can be any combination of professionals that the parties choose to work with to resolve their case. The decision to add a particular Collaborative professional to the Collaborative Team is usually made at the beginning of the process, and is based on the parties’ unique needs and circumstances. Each Collaborative professional utilizes his or her particular expertise to help the parties reach an agreement. The process of separation and divorce creates challenging emotional, financial and child-related issues, which can often be most effectively resolved utilizing the interdisciplinary Collaborative Team approach.
After initial individual meetings with their Collaborative attorneys, the clients, the Collaborative attorneys, and often both coaches, meet together to identify the couples’ issues and goals, to make any necessary interim arrangements regarding children or finances, and to identify information to be gathered to help develop options and reach goals. In addition, the clients can work individually and jointly with coaches to develop effective communication skills and to manage the intense emotions that often accompany separation and divorce. If there are children, the coaches work with the parents to develop a parenting plan that serves as a framework for co-parenting. Additional consultants such as a financial specialist, a child specialist, or an appraiser can also be hired to assist with other aspects of information-gathering and professional guidance. These team meetings serve as the venue for exchanging and clarifying information and for brainstorming possible options for a final settlement.
Collaborative professionals recognize that the focus needs to be on helping the entire family. To do this work, Collaborative attorneys must undergo a "paradigm shift." Instead of being dedicated to "winning" at all costs for their client, Collaborative attorneys are dedicated to helping their clients achieve the healthiest outcome for the family as a whole. Collaborative 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.
The Collaborative Process encourages creative problem-solving, and engages the strengths of all the Collaborative Team members and the parties to achieve the resolution most workable for each client and for the family as a whole. Collaborative attorneys are sensitive to this reality – that for their client to benefit, they must also be supportive of a good settlement for the other party. This is the special characteristic of the Collaborative Process that is not found in other alternative dispute resolution processes.
Separation or divorce can be emotionally challenging for children. In the Collaborative Process, parents work with mental health professionals, called coaches, who can help them resolve their differences and assist in crafting an effective co-parenting plan. Using coaches provides a safe environment for parents to express parenting concerns and an informed method to reach resolutions. One of the best parts of the Collaborative Process is the primary use of coaches, rather than attorneys, in resolving parenting issues. Reducing anger and hostility between parents, and working towards healthy co-parenting can benefit children now and as they grow into adults.
No single approach is right for every couple, and how you choose to proceed should be discussed with a professional. In contrast to the often destructive and adversarial components of litigation, the Collaborative Process offers a healthy alternative as it addresses all of the dissolution issues while helping the parties develop more effective ways of interacting and communicating with one another. The Collaborative Process may be right for you if you:
The Collaborative Process is based on the principles of dignity, respect, openness and fairness. It is designed to minimize the hurt, anger and alienation that occur too frequently with divorce. Every part of the Collaborative Process — from open communications, to solution-based negotiation, to an out-of-court settlement — is intended to foster respect. When respect is given and received, self-esteem is likely to be preserved, making discussions more productive and an agreement more easily reached.
The end of a marriage or a relationship is difficult enough. The Collaborative Process believes that the divorce process doesn’t have to amplify the pain, but can provide an opportunity for the family to restructure in as healthy a way as possible.
Expensive legal procedures are not utilized to obtain information. The clients and their Collaborative attorneys agree, from the beginning, that they will share all relevant information and documents voluntarily and in a timely fashion. Withholding documents or creating unnecessary delays is not permitted. If a party is not acting in good faith, it is the role of the Collaborative professionals to address the situation. If a party continues to refuse to act in good faith, the Collaborative Process is terminated.
Divorce is both an ending and a beginning. An integral aspect of the Collaborative Process is helping each partner anticipate his or her needs moving forward. When children are involved, the Collaborative Process makes their future a number one priority. As a more respectful, dignified process, the Collaborative Process helps families make a smoother transition to the next stage of their lives.
The Collaborative Process should not be viewed as a low-cost alternative. However, Collaborative law cases cost significantly less than litigated ones, and also deliver intangible benefits not available in the court-based process. The cost of the Collaborative Process depends on a number of factors including the difficulty and number of issues to be resolved, the professionals’ hourly rates, the costs of getting the necessary data or information from others, and the amount of time required for you and your partner to reach a settlement.
Individual circumstances determine how quickly any dispute resolution process proceeds. The Collaborative Process usually takes less time than a litigated process. A litigated process has a defined schedule, and the time frame is affected by the number of cases in the court system and a judge’s availability. In the Collaborative Process, the clients and the Professional Team determine the pace and have ultimate control over the timing.