What is Collaborative Law in Dispute Resolution?

Using collaborative law in dispute resolution, especially in family law, helps parties find solutions that meet their needs and the needs of the other parties.  Collaborative law, also known as collaborative practice, is a practice of law that shifts from an adversarial mindset to a collaborative mindset.  It is most commonly practiced in family law disputes and has created a new way to resolve family disputes without litigation or other alternative dispute resolution mechanisms.  Collaborative law acknowledges that divorce and other family law matters are not only legal processes, but that there are memories and emotions tied to the decisions being made.  It puts the family’s needs at the front of the decision-making process. This article will explore what collaborative law is and how it differs from mediation, a similar process with key differences.  Finally, it will discuss the benefits and disadvantages that using collaborative law may have on a family law matter to ensure that choosing collaborative law is the best decision.  

Explaining Collaborative Law: 

As noted above, collaborative law is the practice of shifting the divorce process away from adversarial proceedings and encouraging a collaborative or cooperative approach to a settlement.  It fits in with other alternative dispute resolution processes because it is a way to help the parties reach a settlement agreement.  However, instead of a neutral, collaborative lawyer still represent their clients when they come to the table, but they have agreed to represent their clients in a collaborative process to reach a settlement agreement.  Collaborative law may also use financial experts and child specialists to help identify areas that could use some work in the agreement to ensure that all interests are adequately cared for.  

The purpose of the collaborative process is to create a team of professionals that helps guide the parties toward an agreement that is mutually agreeable for everyone involved. The members of this team include: 

  • Parties: The parties to a divorce or family law matters are typically the spouses who are separating.  However, the parties may also include grandparents or children if they have interests that will be affected.  This is especially true in custody cases.  The parties are the ones that make the agreement and settle their case. 
  • Attorneys: Attorneys will be present for the parties and will represent their client’s interests.  However, they will be attorneys trained in the collaborative process and will help the parties identify what the best options are for their future.  Instead of seeing the other party as an adversary to beat, they will often see the other side as a teammate or colleague.  
  • Coaches: Parties can also choose to have a divorce coach present during the process. This coach will help the parties regulate their emotions and communication to make decisions together for the long term.  This helps keep the conversation on track and steers clear of the possibility of outbursts and rash decisions. 
  • Financial Neutral: Collaborative law will also often involve a neutral financial advisor to help the couple make the smartest decisions while dividing their possessions and lives.  They have tax and other financial knowledge that others may not understand.  
  • Child Specialist: Especially in cases that deal with custody issues, the team will often involve a child specialist.  This specialist will evaluate the living situations with both parents and help make decisions to ensure that the children are well taken care of after the divorce.  The focus of this specialist is to keep the children out of the middle of tricky situations and set them up for success.  

Before this team can assemble and the discussion can begin, the parties will need to sign a participation agreement.  This document will state that the parties have agreed to participate in the collaborative process and will lay out the ground rules of the process.  One important ground rule is the agreement that if either of the parties chooses to go to court, the lawyer in the case will not represent them.  This gives the attorneys and the parties an incentive to resolve the dispute outside of traditional litigation.  This creates a space that allows the parties to work through difficult issues and push to create an agreement that is truly a collaborative process.  They earn the trust of each other in the process.  

Collaborative Law v. Mediation: 

In looking at the description of collaborative divorce above, it may seem like collaborative law and mediation are the same process. But some key differences are important to understanding what makes the collaborative process unique.  These differences include: 

  • Neutrals: Collaborative law does not use a neutral to control the conversation.  Instead, the attorneys create the process with the parties.  Mediation requires a mediator, who is a neutral third party that helps the spouses discuss their dispute.  
  • Attorneys: As mentioned above, collaborative law requires that the parties be represented by attorneys to participate fully.  Mediation can happen whether or not the parties are represented.  
  • No Court Agreements: In collaborative divorce, the parties sign a no court agreement that requires the attorneys to withdraw if the parties choose to take the dispute to court.  Mediation has no such agreement or requirement, meaning that the same attorneys often represent parties in mediations and at court.  
  • Confidentiality: Both mediation and collaborative law agreements will usually have a confidentiality agreement.  However, only some states have laws that enforce these agreements, and even then it is only for statements made during mediation and rarely, if ever, during collaborative divorces.  
  • Other Professionals: As mentioned above, collaborative divorce often involves the use of multiple professionals to create a team to help the parties reach their agreement.  Mediation will rarely use such an approach and will often involve only the mediator and the parties.  

There are several other differences between the processes, but while the processes may seem similar, they are often very different and provide a variety of different outcomes.  

Benefits of Using Collaborative Law: 

When considering whether a collaborative process is a right fit for a divorce or other family law matter, it is important to identify the areas that the process is best suited for based on the unique advantages that it offers.  Collaborative law offers a wide variety of benefits to a divorce that can help a former couple move forward with their lives.  Some of these benefits include: 

  • Control: Unlike litigation, collaborative law allows the parties to have control over the outcome of their case.  They are creating the resolution together with an understanding of what is best for all the parties involved.  
  • Time: Traditional litigation is often time-consuming and inconvenient.  Collaborative law is often a quicker approach to dispute resolution that is convenient and can cater to the parties’ schedules.  
  • Cost: Because it often involves less time, the cost of collaborative law is often lower than a divorce that goes through the court system.  
  • Creativity: Because the decisions are not made based on the judge’s decisions and the strictness of the law, the parties have more flexibility to decide what is best for their family as it shifts and moves forward.  
  • Outside Insight: The use of professionals in the collaborative divorce process is helpful because they can often provide insight into situations that would not be considered in other processes, and they can help the couple create a plan that serves everyone well long into the future.  
  • Parenting Skills: The process’s focus on communication and collaboration often follows the agreement into parenting and co-parenting styles.  It can help create a healthy and safe space for the children.  

There are many advantages to using collaborative law to resolve a divorce.  The team of professionals will help the parties create an agreement that meets everyone’s needs and helps create the healthiest possible divorce given the circumstances.  While similar to mediation, collaborative law allows the parties to listen to advice from their attorneys and other professionals while still saving money and time.  Collaborative law is an innovative way to encourage the parties to find a way to resolve their differences and create a life after divorce that is the best for everyone.  

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