Collaborative Law is a process that enables divorcing parties and parties involved in other family law disputes, each represented by counsel, to resolve the parties' differences in a non-adversarial setting, in other words, without "fighting it out" in court.
HOW DOES THE COLLABORATIVE LAW PROCESS WORK?
The process operates in an environment grounded in good faith, cooperation, integrity, honesty and professional ethics to facilitate the resolution of the parties' differences without litigation. The parties and their lawyers enter into a Participation Agreement wherein they agree to work together to achieve a satisfactory settlement in a cooperative manner. The participants agree to voluntarily disclose all relevant information and to cooperatively resolve all issues outside of litigation. Settlement is accomplished through informal discussions, settlement conferences, mediations and other amicable alternatives. The use of experts may be necessary and should be encouraged where their involvement can assist in the collaborative process. Collaborative Family Lawyers work toward settling your case rather than preparing for and conducting a trial, resulting in savings, both financial and emotional, to you and your family.
WHAT ARE THE POTENTIAL BENEFITS OF COLLABORATIVE LAW?
Mutually agreed upon settlement
Atmosphere of cooperation
Retaining control of the settlement process
No adversarial environment
Greater privacy and confidentiality
Savings of time and of money
WHAT HAPPENS IF SETTLEMENT CANNOT BE REACHED?
Both lawyers must withdraw from the case. The lawyers will assist the parties in finding new counsel who can pursue their case in court, and will work to make a smooth transition for their clients.
HOW DO I START A COLLABORATIVE LAW PROCESS?
Share this information with your spouse and encourage him or her to also hire an attorney who is familiar with and committed to the collaborative law process. The attorneys can then confer and schedule the first four-way meeting to review your situation and sign a participation agreement if the collaborative approach is appropriate for your case.
MY SPOUSE HAS ALREADY INITIATED A LEGAL PROCEEDING.
IS IT STILL POSSIBLE FOR US TO USE THE COLLABORATIVE LAW PROCESS?
Yes. If your spouse's lawyer will agree to utilize the collaborative law process, the action can be dismissed or abated.
Statement of Principles of Collaborative Law
I. THE COLLABORATIVE LAW PROCESS
Collaborative law is a cooperative, voluntary conflict resolution vehicle for parties going through a separation, dissolution or other family law matter. The participants, which include both the attorneys and the parties, acknowledge that the essence of "collaborative law" is the shared belief that it is in the best interests of parties and their families in family law matters to commit themselves to avoiding adversarial proceedings -- particularly litigation -- and instead to work together to create shared solutions to the issues presented by the parties. The goal of collaborative law is to minimize, if not eliminate, the negative economic, social and emotional consequences of litigation to families. Choosing collaborative law requires a commitment to resolving differences justly and equitably.
II. NO COURT OR OTHER INTERVENTION
Collaborative law requires a commitment to settling the issues involved without court intervention. Participants must agree to give full, honest and open disclosure of all information, whether requested or not. Participants must agree to engage in informal discussions and conferences to settle all issues.
There is no guarantee that the process will be successful in resolving a dispute. The collaborative process cannot eliminate concerns about the disharmony, distrust and irreconcilable differences which have led to the current conflict. Although the participants are committed to reaching a shared solution, each party is still expected to identify and assert his or her respective interests and the parties' respective attorneys will help each to them do so.
IV. PARTICIPATION WITH INTEGRITY
Participants must commit to protecting the privacy, respect and dignity of all involved, including parties, attorneys and consultants. Each participant must commit to maintaining a high standard of integrity; specifically, participants shall not take advantage of the other participants, or of the miscalculations or inadvertent mistakes of others, but shall identify and correct them.
V. EXPERTS AND CONSULTANTS
Sometimes the input of outside experts such as accountants, appraisers and therapists might be needed to assist the participants in reaching creative and informed solutions. If any such experts are needed, they will be retained jointly. All such experts and other consultants retained in the collaborative process shall be directed to work in a cooperative effort to resolve issues.
VI. CHILDREN'S ISSUES
In resolving issues about sharing the enjoyment of and responsibility for children, the parents, attorneys and therapists shall make every effort to reach amicable solutions that promote the children's best interests. Parents will act quickly to resolve differences related to the children and to promote a caring, loving and involved relationship between the children and both parents. Every effort will be made to insulate children from involvement in the parents' disputes. Parents will attend a parent-child divorce education program
VII. NEGOTIATION IN GOOD FAITH
The process, even with full and honest disclosure, will involve vigorous good faith negotiation. Each participant will be expected to take a reasoned position in all disputes. Where such positions differ, each participant will use his or her 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. Although participants may discuss the likely outcome of a litigated result, none will use threats of abandoning the collaborative process or of litigation as a way of forcing settlement.
VIII. ATTORNEYS' ROLE - ATTORNEYS' FEES AND COSTS
The attorneys' role is to provide an organized framework that will make it easier for the parties to reach an agreement on each issue. The attorneys will help the parties communicate with each other, identify the issues, ask questions, make observations, suggest options, help them express needs, goals and feelings, check the workability of proposed solutions and prepare and file all written paperwork for the court. The attorneys and the parties shall work together to reach a solution which serves the needs of both parties. The collaborative process requires parity of payment to each attorney. The parties will make funds available for this purpose. Each attorney is independent from the other attorneys in the collaborative group, and has been retained by only one party in the collaborative process.
IX. ABUSE OF THE COLLABORATIVE PROCESS
A collaborative law attorney will withdraw from a case as soon as possible upon learning that his or her client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the collaborative law process. Examples of such violations of the process are: the secret disposition of community, quasi-community or separate property; failing to disclose the existence or the true nature of assets and/or obligations; failure to participate in the spirit of the collaborative process; abusing the minor children of the parties or planning to flee the jurisdiction of the court with the children.
X. DISQUALIFICATION BY COURT INTERVENTION
An attorney's representation in the collaborative process is limited to that process. No attorney representing a party in the collaborative process can ever represent that party in court in a proceeding against the other spouse. In the event a court filing is unavoidable, both attorneys are disqualified from representing either client. In the event that the collaborative law process terminates, all consultants will be disqualified as witnesses and their work product will be inadmissible as evidence.