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Collaborative Law

Should You Consider Collaborative Law (Cl) as a Way to Resolve Your Divorce, Parenting, or Post Divorce Issues?

Collaborative Law is a fast-growing option for people to resolve disputes respectfully and fairly without ever going to court or without having to get caught up in the adversarial process.

Settling on the courthouse steps: how does Collaborative Law differ from a negotiated agreement?

95% of cases settle without a trial, so why use Collaborative Law?  If 95% of cases settle, the main question to ask is how long your case would likely take to settle - one year or two years?  And how much will you spend, both financially and emotionally to reach that agreement?

From the date you file your petition to the date of your trial, the wait in New Hampshire can be at least a year. If you need more than a one-day trial, you may be waiting for two years to be heard. For many clients, this costly wait for tangible results can feel like an eternity.
The threat of litigation adds considerably to your costs since your attorney must take extra steps to protect your interests in case of trial. This extra cost is avoidable if you use Collaborative Law, as is the “emotional cost” which accompanies an adversarial mind-set, where both parties are out to “win” the most from the marital pie.

With Collaborative Practice, the attorneys are “collaborative colleagues” not “opponents” and the participants share the goal of reaching an agreement that will endure for both of them and will further their children’s well-being. Since the adversarial approach is known to cause distress in children, no matter their age, people often choose Collaborative Practice to protect their children from the harms inherent in breaking up the family.

People often think that they need the court in the background, in case the other spouse is unreasonable and unwilling to compromise. But the reality is that most litigants do not want a judge to decide the terms of their divorce and most litigants end up compromising to settle their case.

What is the difference between Collaborative Law and Mediation?

Both are “Alternative Dispute Resolution” processes and allow the client to be in control of the divorce. The major difference between these two methods is that a mediator, by definition, is neutral and is hired only to facilitate an agreement. In other words, the mediator is prohibited from “choosing sides” and cannot protect you from making potentially bad decisions. The mediator cannot advise you of what is in your best interests.

When you choose mediation, you are acting as your own attorney, at your own risk.

Although successful, enduring mediated agreements happen regularly in New Hampshire, at the hands of skilled practitioners, to protect yourself, your finances and your children, mediators advise you to hire your own attorney to review your agreement or even to coach you for your mediation. Nonetheless, at that point, most people “just want the divorce over with,” and usually just seek a cursory review by an attorney who has incomplete knowledge of the facts and circumstances that are unique to the client.

Where there is an imbalance of power between you and your spouse – say, where one controls the finances, or one person has historically been in charge of parenting – it is sometimes difficult to create trust and to obtain full disclosure of information in the context of mediation. The mediator is permitted to be passive and has no obligation to be pro-active in the pursuit of vital information. If one or the other party decides not to share an important fact, there is very little recourse.

The person with the power may feel as if he or she “won”, but is actually opening him or herself up to years of potential post-divorce litigation by the “losing” party who seeks to modify the agreement. Agreements created without the full attention of an advocate often do not last.

With CL, the attorneys prepare all of the documents for the court, thereby ensuring that every detail reflects what you intended. Although mediation clients often show their mediated agreement to their own attorney, whom they hire for the limited purpose of review, there is no substitute for working with your own attorney from the start to the finish of your case. The decisions you make in your divorce are some of the most important ones you will make, with far-reaching consequences over the rest of your life.

What does the Collaborative Process look like?

In Collaborative Law, the first step is that everyone signs a contract not to litigate. Under the Collaborative contract, the lawyers are prohibited from using the courts to resolve clients’ cases. When you are fully represented by counsel, as you are in CL, both lawyers are under a duty to obtain and share all client information that could possibly affect the ultimate agreement. With CL, after the participants sign a contract not to litigate, the first meeting is spent identifying the areas of conflict, assigning homework such as the gathering of financial documents. Minutes are kept and shared and most final agreements are reached after a total of only four to six group meetings.  Before you meet with the other participants, you will meet with your own attorney, who does a thorough intake getting to know you, your concerns and the issues from your perspective. You are always free to meet privately with your attorney to discuss your case. Depending on the issues, some CL cases fully resolve after only three meetings; typically cases resolve within four months. The majority of cases resolve after six meetings. And a specially-trained divorce coach can be called upon to help unblock the emotional issues that can impede the process. It is normal to have issues about the end of the marriage and fears of the future. We have a list of Collaboratively-trained facilitators who can help parties reach a prompt and efficient resolution, if they get stuck and have trouble moving forward.

What about the children?

Instead of the win-lose environment, or the “blame-game” that is par for the course in a litigated divorce, Collaborative Law helps both parents work with each other, not against each other, towards mutually beneficial solutions that put the children’s needs first and reduces the stress  between the parties, whether they live separately or continue to reside in the same house.

With the focus on solutions versus blame, and with the optional help of a facilitator, parents create a workable, durable parenting plan.

Would you like to be financially OK in the future?

Most people heading into a divorce say they want to “be fair” to the other person financially. And everyone is concerned about being able to live a decent lifestyle after the marriage has been dissolved. In other words, the parties both want to be able to move on with their lives.

By maximizing what is available to divide in the way of net assets, the two participants have a chance to be “OK” financially in the future. And this in turn helps the durability of the settlement so that no one feels compelled to ask the court to change the support amount in post divorce litigation.

Collaborative Law can use a team approach to help both parties analyze the financial choices available to them when dividing assets and debts or paying support. A Financial Planner who has been specially trained in the Collaborative Process is available as a neutral expert to provide various scenarios for dividing up the marital “pie.” The expert can explain the effects of those choices for the next 30 or more years post divorce. For example, many people want for one of the parties to be able to keep the house at the time of the divorce. But this decision might not be optimal when the ability to earn income differs drastically between the parties.

Do you wish for privacy and do you want to be in control of the entire process from start to finish?

Many people feel disappointed after a judge or marital master decides the issues in their case, after their attorney and their spouses’ attorney have spent dozens of hours at high cost preparing and presenting their cases in court. This is because the judges and masters, who do their best, make hundreds of personal decisions each week for people about whom they know very little.

When you do a Collaborative Divorce, you are in control of the outcome and you are fully informed of options. This control applies to all of the decisions you will make about your children and your finances.

This control also applies to your relationship with your attorney: Collaborative Law is client-centered, which means that your lawyer is there to provide the tools to empower you to make the best decisions for yourself and for your re-structured family, if you have minor children.

Control also means that the two of you are working from your timetable, not according to the court’s docket.

This control also affects the need for privacy. If you or your spouse owns a business, with a Collaborative Divorce, there will be no public hearings, and there will be no risk of business records ever becoming part of the public record.

Is one of your goals a respectful interaction between you and the other person?

You don’t have to like your soon-to-be ex to engage in a respectful dispute-resolution process. In Collaborative Law, the parties are expected to engage in respectful dialogue to resolve conflicts. This does not mean the experience is free from emotion and sometimes the parties do get stuck rehashing old grievances. With Collaborative Law, Mental Health Professionals who have been trained In the Collaborative Process are available to help people effectively limit their communication to their concerns and goals, rather than dwelling on the past.  They can help people move past their emotions to finalize their agreement.  This does not mean that “injustices” in the marriage such as affairs or alcoholism get ignored in the final terms of the divorce. In fact, the Collaborative Process allows for the parties to express their feelings and even to apologize without the fear of this being turned against them in a fault-based, litigated divorce. CL allows for a frank discussion of what is “fair” given the history of the marriage and the needs of both people going forward.

There is no such thing as a small “c” collaborative divorce which “leaves all options open.”

A true Collaborative divorce cannot go to trial unless you end the Collaborative process. Some attorneys will tell you that they can do a “collaborative” divorce but that you will not have to sign a Collaborative contract. Furthermore, they are not trained in the Collaborative model.  This approach leads to problems: the lawyer must consider that the case may culminate at trial and by definition, cannot commit to keeping the case out of court. With the threat of litigation always on the horizon, you run the risk of spending more money and expending more time to achieve the very same results you would achieve through the Collaborative Process. The entire tenor of the case is different if the attorneys and the parties do not sign the contract not to litigate. While you may think that you are most likely going to settle outside of court, if you proceed with this assumption, you may have the rug pulled out from under you. Only by signing the Collaborative contract and using a trained Collaborative attorney can you trust that the process is truly Collaborative and therefore outside the court system.

Can you stop a litigated divorce and finish it under the Collaborative Process?

Yes you can, if both parties agree to do so. The parties simply have to withdraw the original petition and explain to the court why the petition is being withdrawn. When the matter is resolved, a new joint petition is filed, along with the rest of the divorce paperwork. Be advised that there are some important considerations regarding the best time to make this conversion to a Collaborative Law case.

Can you switch to a Collaborative Law attorney after you have started with a litigator?

You are the client in your family law case and you have the right to make changes in your legal representation at any point in the process.

Is Collaborative Process appropriate in all cases and what are the downsides?

CL will not work unless both people desire the protections of Collaborative legal representation throughout the case. It is also inappropriate if the parties refuse to speak to each other; however, through the use of the divorce coach, even this unproductive dynamic can be gradually improved to eventually allow for an agreement to be reached.

All that is required for CL to work is shared big-picture goals: participants who want a durable agreement that both can live with; who both want to be financially “OK”; who both want their children to be emotionally unscathed, now and in the future, despite the re-structuring of the family. It only requires that neither person use the process to make the other person suffer or to seek revenge.

Especially where children are involved, CL provides an opportunity to learn new communication techniques that will allow the participants the freedom and comfort to be in same room perhaps as they attend a child’s or grand-child’s birthday party, high school graduation, or wedding.  It can also provide a safe environment for the parties to apologize for past hurts, if that is needed to help the other move forward to final resolution.

The major downside of CL is that if the case does not resolve, the client cannot use his or her Collaborative attorney, or the Collaborative attorney’s firm, to litigate the case. He or she has to choose another attorney.  In reality, most Collaborative cases succeed because the participants – clients and lawyers- invest in and are committed to creating solutions to resolve the issues without using the adversarial process.

Another downside is the perception that people that they will “get less” if they don’t fight; however, this thinking often fails to factor in the high costs of fighting.

There is also the assumption that the parties will save money if they mediate on their own without hiring a personal advocate. This approach often fails to consider the future costs of having to suffer for a pressured or uninformed choice, or that that result in a bad decision, or the costs of returning to court to fix the parts that did not work.

Collaborative Law allows for a “Minimally-Invasive” Divorce

A The Huffington Post (12/17/10) article about CL, entitled, “Is There a Minimally-Invasive Divorce?” reports that “even in bitter divorces, husbands and wives usually want to do the right thing. They just disagree about what the ‘right thing’ is…[and] whether they actually wind up trying the case to a judge…,  or settle on the courthouse steps, no one is spared the emotional or financial devastation of the experience.”

Conclusion

With all family law cases, the main questions are: how soon will you finish, how much will you and your children pay, both in financial and emotional expense, and how informed will you be as you make the best choices for your future.

With Collaborative Law, and unlike classic litigation, you, and not your lawyer and the courts, are in control: your end result does not rest on who has paid for the “better” lawyer; or who has the means and the power to control the flow of vital information; or how your lawyer performs in the courtroom. Nor, unlike with mediation, are you mostly on your own, without a personal advocate, and with potentially too much control and too little knowledge to make truly informed choices.

With every family law case, there is compromise, whether the case is decided by the court, whether it is mediated or whether it is negotiated before, or on the day of, the final hearing. There are always two people who desire to move on, with their dignity intact and with financial peace of mind for the future. There are often two parents who want their children to settle into the re-structured family unit with as much smoothness and emotional health as is possible.

A process which not only allows for dignity, fairness, and peace of mind for everyone involved,  but one that encourages it, may be right for you and your spouse. Consider Collaborative Practice as you decide how you want to proceed in your family law case.