The job of the Collaborative Professionals is to "set the tone" for positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative Professionals help each client to present his or her interests and needs in a positive manner that will be heard by the other participants. Meeting together can help everyone to be "on the same page", which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.
One of the most important aspects of Collaborative Practice in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children's interests and family relationships are protected. Sometimes, the clients have developed a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, the parents need assistance in transitioning from parenting in one household to parenting in two households. Divorce Coaches and Child Specialists can assist parents in developing effective communication and in creating a parenting agreement. The Collaborative Attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.
After initial meetings with their own Collaborative Attorneys, the typical process is to start the case with a 4-way, 6-way, or 7-way conference - the clients and Collaborative Attorneys (and sometimes both Divorce Coaches and Neutral Financial Professional) meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the clients can work individually and jointly with Coaches to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as Financial Specialists, Child Specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. These conferences continue to be the normal means of exchanging and clarifying information and to brainstorm possible options for resolution. The Collaborative Professionals work together and with their clients to plan each meeting. The clients and Collaborative Attorneys and other team members focus on educating everyone regarding the underlying information, each party's interests, and possible solutions. Out of this process, a settlement which meets the approval of the clients can be fashioned.
There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, attorneys work hard to convince a judge (or jury) that the attorney's client's version of reality is, in fact, correct. Often, this includes denigrating the other party or his/her perception of reality. Trial is often compared to a battle, in which the best side wins. However, all attorneys understand that the "best side" doesn't always win and that in many disputes, the party who "wins" at trial still loses in other ways. In some circumstances, litigation is the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, a third party decision-maker may be needed. Litigation usually costs more than other forms of dispute resolution, and the outcome is typically less satisfactory.
In mediation, a neutral professional assists the clients in settling the dispute. Generally, the clients agree that all relevant information will be shared between them and that they are seeking a "win-win" solution. The mediator does not represent either party, and the clients do not go to court. In some forms of mediation, attorneys serve only in a consulting or reviewing capacity. In other situations, attorneys participate in the mediation. Mediation can work well for clients who have the ability to communicate their needs directly to the other person and who have a similar understanding of the financial and other information being presented.
Collaborative Practice combines the positive qualities of litigation and mediation. As in litigation, each party has an independent attorney who will give her or him legal advice and will assist in putting forward his or her interests. Drawing from mediation, the clients and their Collaborative Attorneys commit to both an open information gathering and sharing process and to resolve their differences without going to court. In addition, the clients can mutually agree to engage other professionals such as Child Specialists, Neutral Financial Professionals, Divorce Coaches, vocational counselors or other neutral consultants to provide them with specialized assistance. The clients acknowledge that the best result for each of them will occur when they reach the best result for all of them.
Once you have chosen Collaborative Practice, you will need to select Collaborative Attorneys to assist you throughout the process. Following that selection, you each also select your Collaborative Divorce Coach. Together with your Attorneys, a Neutral Financial Professional is selected as your process begins. Wherever you begin the process, you will have a chance to meet privately and together with your professionals. Collaborative Practice is unique in that it calls for both of you, your attorneys, and often other professionals, to come together for face-to-face discussions and negotiations outside the courtroom. In an atmosphere of openness and honesty, all assets are disclosed, needs are communicated, and solutions are explored. When there are children, their interests are given foremost priority.
The end result of Collaborative Practice is a divorce agreement that has been achieved through mutual problem solving. Nothing is finalized until you and your spouse agree that it is an acceptable solution. You, along with your attorneys and other chosen Collaborative professionals, take control of shaping the final agreement rather than having a settlement imposed on you by the court.
The clients do not engage in expensive legal procedures to obtain information. The clients and their Collaborative Attorneys agree from the beginning that they will share all relevant information and documents voluntarily and in a timely fashion. Hiding documents or unnecessary delays are not permitted. If a party is not acting in good faith and "hides the ball", it is the duty of his or her Collaborative Attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative Process can be terminated.
The clients decide what type of additional assistance is needed in the information gathering process and jointly engage consultants. For example, the clients can jointly hire a Neutral Financial Professional to assist them in gathering and organizing financial information and to create projections for future financial possibilities. Or, they can jointly engage an appraiser to provide them with an opinion regarding the value of a particular asset.
The Collaborative Attorneys will draft the necessary legal documents to memorialize the clients' agreement. This paperwork is then submitted to the court for approval. A court hearing is not required.
No. All clients must voluntarily agree to the solution. No party is forced to accept a solution that does not meet his or her interests and needs. The clients understand that the goal is to fashion a solution that comes as close as possible to a "win-win" agreement, while recognizing that they won't receive everything on their "wish list."
You will need to find a Collaborative Attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You can discuss with the Collaborative Attorney ways of approaching your spouse (or the other party) about the Collaborative Process. These include: (1) you talking about Collaborative Practice with your spouse (or the other party); (2) your attorney contacting your spouse (or the other party); or (3) your attorney discussing the Collaborative Process with your spouse’s (or the other party's) attorney, if one has been retained. In the alternative, you can contact Coaches, Neutral Financial Professionals, or other professionals who may be involved in Collaborative Practice and discuss the process with them.
If the clients cannot reach an agreement, the clients can explore other options for settlement such as mediation, arbitration, private judging, and neutral case evaluation, some of which may allow them to stay within the Collaborative framework. If court hearings are required, the Collaborative Attorneys withdraw and each party retains a new attorney for trial. The Collaborative Attorney will transfer the information already gathered and will assist the trial attorney in the transition.
Collaborative Practice is a way for a divorcing couple or parties in another type of civil dispute to work as a team with specially trained professionals to resolve disputes in an open and respectful manner, without going to court. In Collaborative Practice, the goal is to reach a mutually acceptable settlement of a dispute. The clients retain Collaborative Attorneys and other professionals (a Neutral Financial Professional; Mental Health Professionals, including Child Specialists) as needed, who agree to work in good faith to gather and share all information needed to reach an agreement. Each client has the support, protection, and guidance of his or her own attorney. The clients and their Collaborative Attorneys agree that they will not go to court to ask a judge to resolve their dispute for them during the Collaborative Process. If they are unable to reach an agreement, and one of the clients decides to go to court, the Collaborative professionals withdraw. Litigation attorneys and forensic experts are then retained to take the dispute to court.
Something everyone should agree on: respect.
It is simply a fact that about half of all marriages end in divorce, and countless non-marital relationships fail, too. But the emotional devastation that often accompanies the loss of a relationship doesn't have to be a fact as well. That is the thinking behind Collaborative Practice.
Long-sought by divorcing individuals and other concerned professionals who assist them, Collaborative Practice is the alternative to “divorce as usual”. It is designed to minimize the hurt, the loss of self-esteem, and the anger and alienation that occur too frequently with divorce.
The Collaborative philosophy is built on a belief in human dignity and respect. Individuals may cease being partners, but they don't cease being worthy human beings. Every part of Collaborative Practice - from open communications to solutions-based negotiation to out-of-court settlement - is intended to foster respect. When respect is given and received, self-esteem is likely to be preserved, making discussions more productive and an agreement more easily reached.
The end of a marriage or relationship is difficult enough. Collaborative Practice believes that the process of divorcing should not add to the pain, but rather help the spouses and children foresee a hopeful future.
The law may have a different role in Collaboration compared to litigation. In litigation, the law controls, and is used by judges and attorneys to make decisions and negotiate. In Collaboration, the law provides one piece of information in helping you make decisions.
Other types of information you may consider and to which you may give more or less weight than the law:
- Prior agreements - written or verbal
- Something in relationship to honor or account for Interests of others (children, extended family, friends, etc.)
- Basic economic reality may not fit with the law
- Clients’ own sense of fairness
- Other things of importance to one or both clients
It is important that you make fully-informed decisions. Therefore, it is important that you understand how the law applies in your situation. You and your team will decide together when and how you and your spouse will receive that information from the Collaborative Attorneys. For example, the Collaborative Attorneys may agree to run support calculations together rather than separately. If the Collaborative Attorneys run the support calculations separately, then this will be communicated to the rest of the team. The law is not always clear or predictable. Even when the law is clear, you and your spouse can decide to make a decision that works best for your family, taking into account other factors, such as listed those listed above.
Several categories of same gender couples are required to comply with California Family Law/Divorce procedures: (1) couples legally married in California between May 15 and November 4, 2008, (2) domestic partnerships which have been registered at any time with the State of California (not County or City registrations), (3) couples legally married at any time in another state or country, and (4) couples legally registered at any time in another state's domestic partnership, civil union or similar designation that confers the general equivalent of marital rights. Any couples who will get legally married in California following any possible overturning of California's "Proposition 8" would also be subject to California divorce requirements if they later separate.
Collaborative Practice works best for clients who wish to settle without going to court and are willing to commit to a good faith effort to do so. In Collaborative Practice, you maintain control over your decision making rather than letting a judge decide. You can also control the amount of information that becomes a part of the public record (normally, the entire divorce or other legal file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial.)
People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives. Collaborative Practice will increase the possibility of maintaining a civil or even cordial relationship with the other person(s) after the resolution of your conflict.
You should also consider Collaborative Practice if you wish to dramatically reduce your legal fees. A dispute that goes through the entire legal process including a trial can cost $50,000 and up for each party. The formal legal procedures take much more attorney time (and your money) than the informal process used in Collaborative Practice. The focus on settlement moves the case to resolution faster than the typical court-directed case which also can reduce your fees.
Attorneys are typically trained to approach cases with the underlying assumption that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being "what will happen if we go to court." "Going to court" can often become a weapon or threat that derails communication rather than moving the clients closer to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the clients are "at the courthouse steps" after incurring substantial attorney's and expert fees and after depleting their emotional resources.
The agreement by both the clients and Collaborative Attorneys that the Collaborative Attorney will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all clients. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative Attorneys will not be representing the clients in court. The tendency to "drift" to court as the default decision-making method is reduced.