The Benefits and Basics of Collaborative LawMar 29, 2018
The collaborative process gives parties an opportunity to resolve disputes through creative, good faith, non-adversarial negotiation sessions. Collaborative attorneys receive significant and ongoing training in a special set of negotiation skills, including the ability to foster positive, respectful and cooperative communications during collaborative negotiation sessions. The lawyers work with their clients and each other cooperatively to ensure that the negotiations are fair, balanced, positive and productive. These are critically important skills, particularly in situations where the parties have children and continued communication will be necessary.
The hallmarks of the collaborative process are an agreement that neither party will go to court or threaten to go to court, cooperation and participation in good faith. The parties and attorneys enter into a four-way agreement providing that the involved attorneys will not litigate the matter. This agreement incentivizes all involved to work toward a resolution, as neither party would benefit by losing the work accomplished in the joint sessions or with the help of the jointly retained professionals. Notably, all experts (i.e. divorce coach, financial professional, valuation experts, appraisers) are neutral and jointly retained by the parties. Neither party can retain an individual expert, as parties work together, not separately, in the collaborative process to resolve their problems. All professionals, including attorneys, coaches, appraisers, and financial consultants, must withdraw if either party proceeds to litigation.
The collaborative process is significantly faster, less adversarial and less expensive than litigation. Information and documents are exchanged voluntarily and with full cooperation, rather than as a result of formal requests, which clients often find intrusive and upsetting. The parties participate in multiple meetings, each of which follows an agenda and is designed to address a specific goal or set of goals, working toward the ultimate goal of global dispute resolution. These sessions are private, respectful and scheduled at mutually convenient times. In the sessions, the parties work together to create results that meet the needs of each, rather than engaging in posturing and focusing on rights and entitlements. Each party is encouraged to offer ideas and suggestions that would fairly resolve the issues of concern raised by either party. This brainstorming environment, in which the goal is a satisfactory resolution for both parties, often leads to very creative results and a high degree of satisfaction by the participants.
The collaborative process is focused entirely on settlement. All funds expended during the case are spent in furtherance of settlement. The parties and professionals are, at all times, focused on settling the issues and preservation of the parties’ relationship, privacy and respect for each other. When the parties reach a final agreement, settlement documents are drafted by the attorneys, sometimes in the presence of the parties, and then reviewed and edited by all until everyone is satisfied. The court record available to the public will only contain final settlement documents and, in most instances, neither party will need to appear in court.
In sum, the collaborative process permits parties to dissolve their marriage in a private and respectful setting. The collaborative environment often produces more creative and satisfactory outcomes. The process is less expensive than litigation and the result, as the outcome is determined by the parties working together, is more durable.
About the Author: Margaret Kerouac