Family Law: Frequently Asked Questions About Collaborative Practice
WHAT IS COLLABORATIVE FAMILY LAW?
Collaborative family law is defined by three key principles:
- The voluntary and complete exchange of financial information;
- The pledge not to take the matter to court by way of a participation agreement signed by both the lawyers and the parties;
- A commitment to mutual respect and cooperation to achieve a resolution by way of a separation agreement or other domestic contract.
WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE PRACTICE AND TRADITIONAL NEGOTIATIONS?
A conventional separation or divorce process is based on adversarial principles, regardless of the lawyers and/or parties having the intention of being cooperative. Court is always in the background and the resulting conflicts can be damaging, even if the case isn’t before a judge. Children are often the ones who bear the brunt of these conflicts.
The threat of bringing the matter to court is removed in the collaborative process. Collaborative practice is, by definition, a non-adversarial approach to dispute resolution. Your lawyers negotiate in good faith with the focus of achieving a lasting settlement. The reality of what would happen in court guides the collaborative negotiations, but more creativity is possible to achieve a workable and lasting solution for the clients’ situations. Lawyers are present to give their clients independent legal advice, but their focus is on solutions, not on creating a greater divide between the separating spouses.
WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE PRACTICE AND MEDIATION?
During mediation, a neutral third party called the mediator assists you to negotiate and facilitate a settlement of the issues in dispute. The mediator cannot give you legal advice, nor can he or she be an advocate for either side. If you have lawyers, the lawyers may or may not be present at the mediation sessions. If the lawyers are not present, the parties can consult with them between sessions. If an agreement is reached, the mediator prepares a draft agreement for review, revision and approval by the lawyers.
Mediation is often the choice for separating couples with relatively low conflict who are able to negotiate, in the presence of a mediator, without their lawyers present. Collaborative practice may be appropriate for low, medium or even high conflict cases where there are significant trust issues. The presence and support of the lawyers, who are advocates with a view to resolution, assists in understanding what your rights are and assuring that the process is balanced. When an agreement is achieved, the lawyers draft the agreement for review, revision and approval for both parties prior to signing.
Both mediation and the collaborative family law process rely on voluntary and complete financial disclosure by the parties, and a commitment to resolution that will reflect the interests of both spouses. If mediation fails, you may choose to use your lawyer in litigation, if this is what you and your lawyer agreed. The collaborative participation agreement focuses on resolution, and the collaborative lawyers, as well as any other collaborative professionals involved, are disqualified from participating in litigation should the process fail. This is a disincentive to litigate and a strong incentive to work through all the issues to achieve a settlement.
Your choice of using mediation or the collaborative process should be made with professional advice.
You can read the rest of Carolyn’s article at Lerners LLP.