What is collaborative practice? Is it the same thing as collaborative law or collaborative divorce?
The collaborative process is a major shift in the approach to divorce. Collaborative practice is based on the concept that a couple can work together from the very beginning of the case in a non-adversarial way to end their marriage. The goals of collaborative divorce include emphasizing the needs of children, allowing the spouses more control over the process, and maintaining a respectful relationship for the future. The process is designed to consider the interests of each party and their children, to avoid the emotional stress and anxiety associated with litigation, and to ensure that issues such as custody, visitation, child support, spousal support, and division of property are resolved fairly.
Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to “trouble shoot and problem solve” rather than to fight and win. As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.
Each party in the collaborative law process signs a contractual agreement which include the following terms:
- Disclosure of Documents. Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
- Respect. Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
- Insulating Children. As part of the process all participants agree to insulate the children from the proceeding and to act in such a way as to minimize the impact of the divorce on them.
- Sharing Experts. The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (e.g. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
- Win-Win Solutions. The primary goal of the process is to work toward an amicable solution and to create a “win-win” situation for all.
- No Court. Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.
One of the biggest differences in the collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value. Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture. Instead, they are reacting to psychological pains that they experiencing. These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.
A team of professionals is assembled to help the parties understand and resolve their disputes in many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.
A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the breakup of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.
Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn’t it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom?
Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.
What is a collaborative team? It sounds expensive.
Collaborative team could consist of lawyers, financial planners, therapists and even realtors, depending on your family’s needs. The collaborative team can actually you save you money if an amicable settlement can be reached versus a trial, appeal and subsequent motions to modify.
Is collaborative practice more or less expensive than litigation or mediation?
Collaborative practice may sound more expensive. In reality, it is much more cost-effective than the court process or negotiations between two lawyers. Why? When working through financial issues, you will be sharing the cost of one Financial Neutral rather than each paying for your own lawyers to do the same work. Likewise, you will share the cost of the family or divorce coach instead of both retaining one. The family divorce coach will help you keep the emotional issues from sabotaging or prolonging the negotiations, saving you hundreds or even thousands of dollars in legal fees.
What is the difference between collaborative practice and a traditional litigated divorce?
In traditional divorce, judge has discretion in litigation. Using collaborative practice, the parties are each represented by independent counsel, and may also hire additional financial and custody experts to work toward resolution together.
How do we know if we’re good candidates for collaborative divorce?
Collaborative divorce only works when the parties are willing to talk. The parties resolve their situation by sitting across the table with their attorney present with them. Collaborative divorce is a wonderful tool, but it is not appropriate for all couples. The collaborative process may not be appropriate in cases involving domestic violence or severe mental illness. But, there are other options for divorcing spouses in these situations.
How does collaborative practice actually work? Does it always work, or does it fail sometimes?
When a couple begins collaborative divorce, each spouse is represented by a lawyer specially trained in collaborative law. Instead of serving as an adversarial advocate, however, each spouse’s lawyer represents the interests of the spouse and also assists in negotiating a divorce settlement. Also, the couple may receive assistance in the negotiation process from a multi-disciplinary team of professionals including a financial advisor, child specialist or divorce coach.
The spouses and their respective attorneys sign a contract, sometimes called a collaborative stipulation or participation agreement, in which they agree to voluntarily disclose all financial and other information relevant to the divorce. This avoids the formal discovery process, which often is a time-consuming, expensive, and frustrating element of traditional divorce proceedings.
The contract also states that the attorneys will not represent the spouses if the couple chooses to end the collaborative process and pursue divorce litigation. This helps align the spouses and their collaborative team with the goal of reaching a divorce settlement out of court.
The negotiation process focuses on the spouses’ desires and common interests until an agreement is reached. The agreement is then recorded in a written document and filed with the court. Then, if required, the spouses attend a court hearing in which a judge approves their settlement.
What happens if my spouse is dishonest in some way? I don’t trust him not to misuse the process to take advantage of me!
While this can’t be completely prevented, the Participation Agreement helps guard against it. The agreement requires a lawyer to withdraw if his/her client is being dishonest, or participating in the process in bad faith. It is in the best interest of all parties to remain honest and allow the process to work. Further, this is another reason why attorneys need to screen clients carefully to determine whether the collaborative process is the best option given the particular circumstances.
What if my spouse has chosen a lawyer who doesn’t know about collaborative practice? Can we still go ahead with a collaborative divorce?
Collaborative practitioners have different views about this. Some will “sign on” to a collaborative representation with any lawyer who is willing to give it a try. We believe this to be unwise and do not do so.
Trust between the attorneys is essential for the collaborative practice process to work. Unless the lawyers can rely on one another’s representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. Unless I have confidence that the other lawyer will withdraw from representing a dishonest client, I would not sign on to a formal Collaborative Practice process (involving disqualification of the lawyers from representation in court if the Collaborative Practice process fails).
Similarly, Collaborative Practice demands special skills from the lawyers-skills in guiding negotiations, and in managing conflict. These are not the skills a conventional lawyer learns. Without them, a lawyer would have a hard time working effectively in a collaborative practice negotiation. And some lawyers even collude with their clients to misuse the collaborative practice process, for delay, or to get an unfair edge in negotiations. For these reasons, we do not sign on to a formal collaborative practice representation with a lawyer inexperienced in this model. That doesn’t mean we could not work cordially or cooperatively with that lawyer, but we wouldn’t sign the formal agreements that are the heart of Collaborative Practice until we had a track record of mutual trust with the lawyer.
How do we know if collaborative practice is the right divorce process for our situation?
The collaborative process is private and confidential. It provides you with the opportunity to work with your ex-spouse on an agreement at your own pace and to help reach a settlement that you can both live with. If children are involved, a collaborative divorce approach can also help shield them from contentious court testimony. Perhaps most importantly, studies have shown that couples who go through the collaborative process are more satisfied with the results than those who have chosen the traditional litigation path.
Contact a Collaborative Divorce Attorney at Stange Law Firm, PC Today
At Stange Law Firm, PC, we have attorneys who are trained in the collaborative process: Kirk Stange and Kelly Davidzuk.
If you are interested in handling your divorce in a more amicable way and want to learn more about the collaborative process, contact Stange Law Firm, PC today. We have locations in St. Louis, Kansas City, Columbia, Springfield, Wichita, Tulsa and beyond in the Midwest.