The truth is, many divorcing couples get along just fine, they just no longer want to be married to each other. In these cases, a new approach that stresses collaboration over confrontation and aims to keep the divorcing couple out of the courtroom can be a lifesaver.
Here’s how a collaborative law approach to divorce works.
Participants voluntarily and freely exchange information and pledge not to go to court. If someone decides to go to court, the participants, lawyers and other professionals such as social workers or accountants involved in the process, must withdraw. The parties then start over with new lawyers.
Participants commit to respect each other and work towards shared goals.
Mediation involves an impartial third party who assists the negotiations and tries to help settle your case. Mediators should not give legal advice or be an advocate for either side. Participants may consult with their lawyers during or between mediation sessions.
If mediation results in an agreement, the mediator prepares a draft of the settlement terms for review and editing by both parties and their lawyers.
Collaborative practice includes both the parties and the lawyers during the negotiation process, which often helps to keep settlement as the top priority. Collaborative practice lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that is positive and productive.
Both collaborative practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation does not result in a settlement, you may choose to continue with your same lawyer when you go to court. In collaborative practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the collaborative practice lawyers and other professional team members are disqualified from participating when you go to court if the Collaborative Process ends without reaching an agreement.
A collaborative team is the combination of professionals who are chosen to work with participants to resolve their dispute. The process can also simply involve the parties and their collaborative lawyers.
Or participants can also choose to include a neutral financial professional, divorce coaches, a child specialist and/or other specialists who may also be helpful. This “collaborative team” will provide guidance and support as problem-solvers, not as adversaries. The focus for the team should be on the interests of the participants and not positional bargaining.
In a regular divorce case, parties often rely upon the court system and judges to resolve their disputes. Unfortunately, many people often come to view each other as adversaries, and court cases may become a battleground. The resulting conflicts take an immense toll on emotions, especially the children’s.
Collaborative practice is by definition a non-adversarial approach. Collaborative practice lawyers pledge in writing not to go to court. They negotiate in good faith and work together to achieve mutual settlement outside the courts. Collaborative practice is designed to ease the emotional strains of a breakup, and foster the well-being of children.
The guiding principle of collaborative practice is respect. This respectful tone encourages participants to show compassion, understanding and co-operation. Collaborative professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of Collaborative practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
If you decide on a collaborative practice divorce, both sides hire their own collaborative practice lawyer. Everyone agrees in writing not to go to court. You meet privately and in face-to-face talks with your lawyers.
Additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see.
Meetings are conducted and designed to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final divorce agreement
Every family is different as is every collaborative practice case. Your situation and circumstances may determine how quickly your divorce process proceeds. Collaborative practice can be more direct and efficient than a regular divorce court case. Focusing on problem-solving rather than blame and grievances may create the opportunity to strive for respectful results. Full disclosure and open communications enable participants to cover issues and concerns in a timely manner. Further, if participants are able to settle out of court, there is no wait for the multiple court dates and the associated delay that often occurs in regular court cases.
Divorce and separation may represent both an ending and a beginning. Collaborative Family Law practice helps people anticipate and include their need to move forward and makes the future of their children a top priority. As a more respectful, dignified process, collaborative practice supports families’ goals for a smoother transition to the next stage of their lives.
Collaborative practice focuses on interest-based negotiation, also called “interest-based bargaining” or “win-win bargaining.” Interest-based negotiation is a negotiation strategy in which parties collaborate to find a “win-win” solution to their dispute. This strategy focusses on developing mutually beneficial agreements based on the interests of the participants. Interests include the needs, desires, concerns and fears important to each side. Interest-based negotiation often produces more satisfactory outcomes.
Further information about collaborative practice can be found by contacting a lawyer or other professionals (such as a social worker or financial planner) who have been trained in collaborative practice.