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