What is Collaborative Law?
Tuesday, October, 2, 2012
Collaborative Law is a new and alternative process where both parties and their legal counsel commit themselves to resolving their differences justly and equitably without resort, or threat of resort, to the courts. The attorneys hired for Collaborative Law cannot represent the client at trial. The attorneys must withdraw if the case is not settled and the parties decide go to trial. Therefore, the parties and their attorneys are motivated to reach a settlement without court intervention. The parties and the attorneys all sign a Collaborative Law Participation Agreement before beginning the process.
It is becoming the preferred method of family law dispute resolution in some jurisdictions because the process is more humane and promotes the post-divorce spiritual, psychological and financial health of the restructured family.
Collaborative Law relies on an atmosphere of honestly, cooperation, integrity and professionalism geared toward the future well-being of the family. The parties engage in a series of meetings with their attorneys to discuss all issues and concerns, coordinate necessary research, retain the services of any necessary experts and discuss the future needs of the parties. It is hoped that through honest and open communication the parties, with the assistance of their attorneys, will reach a mutually beneficial agreement.
Collaborative Law requires each party and each attorney to take a reasoned position on all issues. Where such positions differ, all participants use their best efforts to create proposals that meet the fundamental needs of both parties, and, if necessary, to compromise to reach a settlement of all issues.
It works best if the lawyers are trained in the Collaborative Law process, even though such training is not required.
Collaborative Law is suitable for many types of law but most often occurs in the domestic area. There is also a team approach using a counseling team and financial advisor to work with the family in a collaborative process. There is training available for all Collaborative Law professionals – attorneys, counselors and financial advisors.
The State of Texas passed legislation regarding Collaborative Law in 2001 (Family Code Section 6.603) and Texas was the first state to pass such legislation.
The Houston Press had an interesting article on Collaborative Law within the last year. It presents the pros and cons of Collaborative Law.
Some General Principals and Guidelines of Collaborative Law
Negotiation through cooperation rather than adversarial strategies.
Practicing law through problem-solving negotiations in which the parties are proactive, seek to understand and to be understood.
The parties are responsible for the action and the outcome.
The parties develop common ground rather than focus on differences.
The parties seek to understand the other person’s interests and concerns which will lead to creative solutions to problems.
The parties seek to resolve issues and concerns with each accepting and supporting the other person’s opinions.
The attorneys should…
Advise the clients of the law that applies to their circumstances.
Be a model for their clients acting in an cooperative, honest and dignified manner with mutual respect to everyone involved in this process.
Guide their clients through the process using active listening and respecting each parties opinions and concerns.
Always use neutral language in speaking and writing.
Bring stability and reason to emotionally charged situations.
Work together to provide all discovery and disclosure so that the parties can make informed decisions.
Avoid using adversarial techniques or tactics.
Bring in any other needed professionals (appraisers, financial consultants, communication specialists) to assist the parties in reaching agreement and to overcome any impasses.
File documents with the Court that are prepared with the mutual agreement of all parties. For example, some parties have filed a “Joint Original Petition for Divorce”.
Take responsibility for the outcome of the issues that are not resolved.
Adhere to the principles and guidelines of the collaborative approach.
Explore differences in perspective, interests and desired outcomes rather than react to them.
Look for creative solutions to their problems.
Actively listen to their spouses’ concerns. Recognize the needs of the other spouse. Treat their spouse with respect and patience.
Respect everyone involved in the Collaborative Law process.
Be patient with the Collaborative Law process.