FAQ about Collaborative Practice in family law matters
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The most helpful facts to know about Collaborative Practice
What are Collaborative Law, Collaborative Practice, the collaborative process, and Collaborative Divorce?
Collaborative Law, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. However, they are all components of Collaborative Practice, which has these key elements: the voluntary and free exchange of information; the pledge not to litigate, and the commitment to resolutions that respect the parties` shared goals. Collaborative Law describes the legal component of Collaborative Practice, made up of the parties and their attorneys. Collaborative Process means the key elements of the process itself.
While “Collaborative Divorce” refers to resolution of particular types of disputes (divorce and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law areas where the parties are likely to have continuing relationships after the current conflict has been resolved.
What is the difference between Collaborative Practice and Mediation?
In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice, and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.
Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by the both lawyers and the parties, until both parties are satisfied with the document.
Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties` shared goals. If mediation does not result in a settlement, the parties may choose to use their counsel in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically provides that the collaborative attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached. Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.
What is a "Collaborative Team?"
The premise of the "collaborative team" is that parties and their chosen professionals act as a problem-solving team rather than as adversaries. A collaborative team can be any combination of professionals that the parties choose to work with to resolve their dispute. It can be just the parties and their collaborative lawyers, which in all cases comprise the Collaborative Law component of Collaborative Practice. It can be the parties, their collaborative attorneys and a financial professional. It can be the parties and divorce coaches, working as a team either before or after the collaborative attorneys are chosen and the legal process begins.
What is the "Interdisciplinary Team Model"?
The interdisciplinary collaborative team model is a multi-disciplinary team approach to dispute resolution, which includes attorneys, coaches, a financial specialist, and when there are minor children, a child specialist working interactively as co-equals. Professionals on the team all subscribe to the same core values and shared beliefs, consistent with the IACP ethical guidelines that none of the team members will be involved in any court process concerning a shared case, and all members will withdraw from the case if it becomes a court process.
Team members are selected by the clients at the beginning of the case. The team is ideally made up of the clients; two collaborative lawyers, one for each partner; two divorce coaches, one for each partner; a child specialist who represents the voice of the child(ren); and one neutral financial specialist. A key element of the team approach is that the couple can enter into the collaborative process through any "door"; a couple, for example, might first contact a collaborative divorce coach, a collaborative lawyer or a collaborative financial specialist to begin the process. Regardless of which "door" they enter, the couple will be guided to select their team. Many teams share a common participation agreement which the clients sign first with their attorneys.
The divorcing couple works with their divorce coaches to enhance their communication skills as well as learn self management and negotiation skills to help them during their divorce process.
When they first meet individually with their divorce coaches, they work on acquiring the skills and knowledge they will need to have successful four-way meetings with their coaches as well as with their collaborative lawyers. During these meetings the couple learns how to communicate their concerns effectively and discuss options for their parenting plan. These four-way meetings are not only crucial in helping the couple to work with the rest of the team during the divorce process, but can assist them in improving their co-parenting relationship as well.
During this process, the child specialist talks with the parents and meets with the child to assess the child`s needs and concerns. The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process. Unlike a custody evaluator, the child specialist does not make specific recommendations, but works with the coaches and the parents in making informed decisions to help their child. This information that the child specialist provides is essential not only for parents, but for the entire team as well.
With the information received from the child specialist, the couple, with the help of their coaches, will craft the parenting plan which is then incorporated into their final divorce document.
The neutral financial specialist meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information. The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options. Often this information is presented in a five-way meeting with the financial specialist, the two collaborative lawyers, and the couple where the options are discussed. Then the couple, along with their attorneys, crafts their financial settlement.
The process may be coordinated by a case manager - usually one of the divorce coaches. This professional acts as a case coordinator to keep all the team members informed and the process on track.
This integrated model provides the couple with the services they need from the professional most qualified to address the complex issues of divorce. Working together, these collaborative professionals help divorcing couples achieve an outcome that would not be possible without this cooperative team involvement.
The team approach can also be adapted to disputes other than divorces and termination of domestic partnerships
What is the difference between Collaborative Practice and conventional divorce?
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a resolution achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children.
Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
Is Collaborative Practice an option for LGBT People?
Yes, a same gender couple divorcing their California, or out-of-state or foreign marriage or domestic partnership can equally benefit from Collaborative Practice. Even unmarried parents, who need to make decisions about their children, such as custody following a break up of the adults' relationship, can equally use Collaborative Practice . Our low cost, educational Divorce Options Workshops are applicable to same and different gender married couples and state registered domestic partners.
What does Collaborative Practice do to minimize the hostility often present in divorce?
Collaborative Practice is guided by a very important principle: respect. By setting a respectful tone, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
How does Collaborative Practice actually work?
When a couple decides to pursue a Collaborative Practice divorce, they each hire Collaborative Practice lawyers. All of the parties agree in writing not to go to court. Then, the spouses meet both privately with their lawyers and in face-to-face discussions. Additional experts, such as divorce coaches and child and financial specialists, may join the process, or in many cases, be the first professional that a client sees. These sessions between spouses and their counselors are intended to produce an honest exchange of information and expression of needs and expectations. The well-being of any children is especially addressed. Mutual problem-solving by all the parties leads to the final divorce agreement. A similar process, and result, is found in other types of disputes.
Is Collaborative Practice a faster way to reach an acceptable settlement?
Individual circumstances determine how quickly any dispute resolution process proceeds. However, Collaborative Practice can be a more direct and efficient form of resolution. From the start, it focuses on problem solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court appearances that may be necessary with conventional litigation.
How does Collaborative Practice focus on the future?
Divorce and termination of domestic partnerships are both an ending and a beginning. Collaborative Practice helps each spouse/partner anticipate their needs in moving forward, and include these in the discussions. When children are involved, Collaborative Practice makes their future a number one priority. As a more respectful, dignified process, Collaborative Practice helps families make a smoother transition to the next stage of their lives. The same benefits can also be achieved in employment, real estate, business, probate and other civil contexts.
With thanks to Pauline Tesler and the International Academy of Collaborative Professionals for excerpts from her FAQs