Collaborative Practice in family law matters
Read Civil Collaborative Practice FAQs
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.
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
Frequently Asked Questions - Civil Collaborative Practice
CP FAQs
Civil Collaborative Practice is an exciting and innovative new practice that uses collaborative strategies rather than adversary techniques to resolve disputes. The Collaborative process is currently most often used in family law matters; however, use of the Collaborative process in civil practice is gaining momentum.
What is Civil Collaborative Practice
Collaborative Practice is a term encompassing all of the models which have been developed, including those involving interdisciplinary teams of professionals trained to work together with the clients in resolving disputes respectfully, without going to court. At the heart of all of Collaborative cases is that each client has the support and guidance of his or her own lawyer, as well as access to additional professionals who can provide support in their areas of training. While Collaborative lawyers are always a part of collaboration, in Civil Collaborative Practice communication coaches, financial consultants, mediators and other professionals are retained to provide the clients with the highest quality service possible. The team of Collaborative Professionals uses strategies and techniques geared toward dispute resolution rather than adversarial proceedings.
Another key to Collaborative Practice is the agreement that once retained to work in the Collaborative process, the Collaborative lawyers will not represent the parties in litigation. If either client decides to litigate the issues, all of the members of the professional team must withdraw.
The same alternate dispute resolution principles that have preserved the integrity and dignity of families in conflict can also bring relief to those in disputes in many areas of civil and commercial law.
How does it work?
A typical collaborative case consists of two clients who each select independent Collaborative attorneys, working together as a team with the goal of resolving all of the issues. The parties and their attorneys enter into a formal agreement that under no circumstances will they go to court. Everyone agrees that they will settle the case utilizing the Collaborative process. If a settlement cannot be reached, or if one of the parties chooses to withdraw and seeks court intervention, both clients must hire new attorneys. This is important, as it insures that the collaborative attorneys are truly focusing on settlement rather than being distracted by thoughts of litigation strategies or positioning. The process requires a significant shift in thinking for the attorneys and the parties. New roles are based on the clients controlling the outcome, voluntary and good faith exchange of all relevant information and refraining from making threats of litigation.
What kinds of civil disputes are appropriate for Collaborative Practice?
In theory, any matter that can be litigated is capable of resolution through the Civil Collaborative Practice. Disputes in the areas of Business, Commercial, Construction, Contracts, Corporations, Elders, Estates and Trusts, Environmental, Franchise, Insurance, Intellectual Property, International Disputes, Labor, Mergers and Acquisitions, Partnerships, Personal Injury, Probate, Professional, Malpractice, Real Property Transactions, Securities/Antitrust, Sports and Entertainment, and Torts, are prime examples.
What advantages does Collaborative Practice offer over other process options?
Lower Cost: Collaborative Practice is generally less costly and time-consuming than litigation.
Client Involvement: The client is a vital part of the settlement team (consisting of both parties and both attorneys), hence clients have greater involvement in the decision-making which affects their lives.
Utilization of Interdisciplinary Team Supportive Approach: Each client is supported in a manner that allows the attorneys and all other professional members of the team to work cooperatively with one another in resolving issues that might otherwise infect non-legal aspects of the parties’ lives and relationships with each other.
Less Stress: The process is much less fear- and anxiety-provoking than traditional Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of "going to Court."
Win-Win Climate: Collaborative Practice creates a positive climate. The opportunity exists for participants to work as problem-solving partners in a climate that facilitates "win-win" settlements.
Speed: Collaborative Practice can be much less time-consuming than cases which get bogged down by lengthy discovery, hearings and clogged court calendars.
Creativity: Collaborative Practice encourages creative solutions in resolving issues, including remedies that may not be available in litigation.
Clients in Charge: The non-adversarial nature of Collaborative Practice shifts decision-making into the hands of the clients where it belongs, rather than into the hands of a third party (the Court).
How does the Collaborative Process work in the healthcare industry?
Medical professionals and hospitals strive to deliver the best medical services available to keep their patients healthy and satisfied, and returning; to gain and maintain good will, respect, and a reputation for excellence in their communities; to promote sound business relationships; and to earn profits.
Notwithstanding these goals and objectives, disputes will inevitably still arise in the form of malpractice claims or disputes among healthcare professionals, their hospitals and insurance companies.
Collaborative Practice allows parties in the healthcare profession to resolve these disputes in a less disruptive and more cost-effective manner by engaging in good faith interest-based negotiation and a commitment by the parties not to go to court.
The process is voluntary and confidential. Civil Collaborative Practice therefore protects the reputation of the hospital and healthcare professionals and the welfare of the patient by addressing the interests of the parties involved.
The Collaborative process is well suited to patients and medical practitioners alike. When necessary, Civil Collaborative Practice offers the parties the advantage of a team approach to assist them in the resolution of their conflict. The parties, their lawyers and a team of coaches, financial advisers or other specialists will work together to generate options that best meet the interests of the parties and guide them to a resolution of their dispute. The patients` claim may be resolved, potentially years earlier than in litigation, with the patients retaining a greater proportion of the compensation due to a more cost-effective process. The doctor is able to privately offer an explanation and an apology without fear it will be treated as an admission of fault in Court, thereby preserving the doctor-patient relationship and continuity of patient care.
Collaborative Practice allows urgent, contested medical disputes to be dealt with when time constraints make litigation an impractical alternative.
Insurance Companies are also able to settle legitimate cases earlier than a trial process normally allows, and to contain legal fees and expenses.
For patients, medical professionals, and other participants in the healthcare industry, resolution of disputes through Collaborative Practice gives them a better chance to continue to treat their patients, to work with each other, to protect their reputations, and to return to their shared interest of delivering excellent healthcare services.
How does the Collaborative Process work in employment disputes?
Companies understand that the people they employ are their greatest assets. Sometimes, however, misunderstandings or disagreements occur in the workplace that can lead to legal disputes.
Collaborative Practice offers employers and employees a way to resolve legal conflicts and employee complaints that does not result in hardening of positions, loss of productivity, emotional turmoil and large legal bills. Instead, Collaborative lawyers work closely with their clients and each other to explore options that address the interests and concerns of the parties without apprehension that positions might shift toward litigation.
Collaborative Practice can be used successfully when there are contract issues, allegations arising from discipline or termination, co-worker disputes, workplace harassment or bullying, employee requests for accommodation, and the like. Whether the employment relationship is continuing or not, the Collaborative process helps clients reach practical solutions to workplace disputes.
How does the Collaborative Process work in probate, estates and trusts?
Estate planning attorneys and tax counsel are usually not litigators. One thing their clients all want and plan for is avoidance of conflicts and lawsuits at death. Continuity of businesses and lifestyles, and minimization of taxes are other key planning factors. A major concern is preservation of family relationships. Many clients want to avoid having their estate become involved in court proceedings. The successful marketing of the living trust nationwide has focused on the idea of avoiding probate-which is not necessarily an adversarial process. Estate planning counsel have responded by making living trusts a core planning device – “avoid probate, avoid litigation”. However, the conflicts that previously arose in probate estates now are appearing in probate court as trust litigation.
Estate planning attorneys can offer Collaborative Practice as another tool to mitigate or avoid post-death litigation. They can discuss Collaborative Practice with clients, and produce testamentary documents which require or encourage Collaborative Practice to resolve any disputes, perhaps with a tie-in to "no contest" clauses as added incentives. The possibility of long-standing sibling rivalries being healed, rather than consuming estate assets, is more likely in the Collaborative Process than it is in litigation.
How does the Collaborative Process work in construction industry disputes?
Developers, contractors, sub-contractors, architects, engineers, and owners associated with a construction project can benefit by the application of Collaborative Practice. A serious construction dispute may halt a project for months-even years. Parties need a quick resolution to remain on schedule, avoid penalties and interest, complete the project, and free capital for other endeavors. By placing a clause in the contract that all parties will consult with trained Collaborative lawyers before proceeding to any other form of dispute resolution, parties can opt to settle matters quickly, privately, and confidentially thus preventing their disputes from developing into full-blown litigation.
How does the Collaborative Process work within for religious organizations?
Disputes arising in churches and their related religious organizations are often emotionally and spiritually devastating for members of the congregations. The last place to settle difficulties in faith-based communities is the court room. Collaborative Practice allows private and confidential face-to-face meetings of the parties and their legal representatives where they can share their interests and goals as well as hear the interests and goals of the other parties, which generally results in a better understanding of the problem and begins the journey to discovering options for peaceful resolutions.
Where can professionals find training in the Collaborative Process?
Training opportunities for Collaborative professionals can be found on the Events Calendar at
www.CPCal.com, or www.collaborativepractice.org.
With thanks to Pauline Tesler and the International Academy of Collaborative Professionals for excerpts from her FAQs