- Collaborative Family Law
=Overview and History=
Collaborative Family Law (also called Collaborative Practice, Collaborative Divorce, and Collaborative Law) was originally a family law procedure in which the two parties agreed that they would not go to court, or threaten to do so.
This approach to conflict resolution was created in 1990 by a Minnesota family lawyer named Stu Webb, who saw that traditional litigation was not always helpful to parties and their families, and often was damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada and Australia. Per the International Academy of Collaborative Professionals ("IACP") [http://www.collaborativepractice.com] , more than 10,000 lawyers have been trained in collaborative law in the United States, with collaborative practitioners in at least 46 states. In some localities, collaborative law has become the predominant method for resolving divorce, co-habitation and other family disputes. More than 1,250 lawyers have completed their training in England where collaborative law was launched in 2005.
In a collaborative case, the parties strive to reach a fair settlement through a series of meetings, sometimes called joint sessions, between the two parties and their lawyers, and sometimes other neutral experts. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs and interests of the parties, and help them progress towards and create a settlement that is consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards. Some have critiqued this aspect of collaborative law (and mediation), believing that court processes are better suited towards protecting rights than voluntary dispute resolution processes. However, most lawyers involved in the divorce process agree that the parties can often make better decisions about their children and their families than a judge.
There is a parallel between Collaborative Family Law and
mediation, in that both are facilitative processes. However, In Collaborative Law the parties agree from the beginning of the dispute not to go to court. Mediation is often ordered during the course of the litigation process. Further, in Collaborative Law, the parties are fully informed about the law and the consequences of various options, and their advocates facilitate the negotiations. In mediation, the mediator is a neutral third party who doesn't represent or advise either side.
The key document in a collaborative case is the Participation Agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and lawyers agree that:
#1. The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original lawyers must withdraw and the parties must retain new lawyers (the "disqualification" provision);
#2. Neither party will take advantage of mistakes by the other side;
#3. The parties will freely disclose all pertinent information and will not hide any material facts;
#4. What is said in the settlement meetings remains confidential;
#5. All experts will be neutral, and hired jointly by both parties and their children; and
#6. Everyone will behave courteously and in good faith.
1. The disqualification provision is a key element to a collaborative case. It ensures that the lawyers' interests are aligned with the clients' interests of reaching settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution, because if a settlement is not reached they are "fired" by their respective clients. collaborative practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Collaborative Law practitioners also believe that the disqualification provision adds a necessary element of trust to the participants, thereby enhancing the likelihood of resolution. Additionally, when court is not an option, it is believed that many collaborative lawyers will retool to learn the additional skills that may be needed to resolve disputes without resorting to a third party decision maker.
2. This is a process of trust. As such, the agreement not to take advantage of a mistake of the other party is intended to facilitate that trust. This is based on the understanding that when children are involved there is a need for an on-going relationship between the parties. A short term advantage that a litigator may obtain from taking advantage of a technical legal mistake of the other lawyer can lead to a long term disadvantage is harboring mistrust among the parties.
3. Even in a litigated divorce, the parties must disclose information. But this can be an expensive process as attorneys and parties try to only disclose what they have to under the rules. Open disclosure merely discloses that which the parties should be required to disclose in an atmosphere of trust and efficiency that should reduce legal costs.
4. As opposed to exposing your family and finances to an open court process, Collaborative Law respects the privacy of the family. This is important to shield the children. In cases with no children, the fact that one's financial information is not disclosed in an open court process is important.
5. Neutral experts are important in cases whether or not children are involved. In Litigation cases with children, people often hire mental health experts to prove the other party wrong and subject the children to these "experts" to prove a point. In litigation financial experts are hired to prove a point. In both instances the parties' sensitive information is exposed to the other side's hired gun and to a public process. Hiring two experts is expensive. In the Collaborative Process, time and money is saved by the parties agreeing on one expert to make the best decisions for their children and their finances.
6. The concept of behaving in a courteous manner and in good faith acknowledges the relationship the parties once had. It also acknowledges that the parties will have to deal with each other again in the future if they have children, and the likelihood of future cooperation is enhanced when parties can be courteous. It also is part of the concept that the parties are working towards an amicable resolution.
Some lawyers who are not trained in the collaborative process believe that the disqualification clause is an unnecessary disadvantage, because all parties are required to appoint new lawyers if the collaborative process ends without settlement. However, it is extremely rare for a collaborative case to end without settlement. Further, the parties know their respective attorneys are committed to settlement because they will be fired if the case does not settle. Otherwise, the lawyers can have a financial incentive not to settle as they can be paid quite a bit more if the case proceeds to trial.
Collaborative Family Law makes use of a team approach to help the couple make fully-informed, carefully considered, settlement decisions. When appropriate, the group brings in outside consultants to help resolve the conflict. Typically, this will include, a collaboratively-trained financial specialist. Financial specialists help by efficiently and thoroughly providing a financial analysis of assets, debts, and budgets for the couple, to allow the couple to do informed future planning. Some of the ways a financial expert helps are to model alternatives for dividing the assets or retirement funds, flagging possible tax implications, and help explore possibilities to ensure financial security for the parties. A financial specialist may also help educate a party who needs more education on finances, and who may need extra support to learn the necessary information in order to make decisions that meet that person's needs. Other financial experts may be hired, for example to value a couple's business.
Where the couple has minor children, a mental health professional (generally a child or family therapist ) may be brought in as "child specialist" to educate the parents as to the developmental needs of children, and to explore ideas for parenting plans/schedules. A divorce coach (typically also a mental health professional) can also be important in a case without children. Divorce is an emotional process and having a coach can help clients more efficiently reach resolutions, and can help attorneys better facilitate. Collaborative Family Lawyers are trained to deal with legal issues, but they may not be trained to deal with the emotional aspects of divorce.
Family Consultants in the Collaborative Process
In Collaborative Family Law, the services of divorce coaches, communications coaches or in the United Kingdom, family consultants, are sometimes used in to help the participants clarify their needs, listen to the other's needs, and stay focused throughout the negotiations, all of which substantially reduce the normal anxiety often experienced in the divorce process and helps allow the co-creation of a resolution. Depending on local protocols, there may be one or two coaches used in cases in any locality.
Family Consultants are therapists or counsellors with a background in supporting families who are going through a divorce or separation process.
The role of the Family Consultant in the collaborative process is flexible with the advantage of being tailor made to address individual needs, those of the couple, the parental relationship and the wishes and hopes of the children.
Use in Other Areas of Law
Collaborative lawhas spread from family law to other fields of law. Practitioners are now applying it to business, probate, employment, intellectual property and personal injury cases. The extent to which the rule on disclosure of all pertinent materials will apply will depend on the nature of the dispute, it being understood in certain areas that it may not be possible or realistic for a party to disclose all material facts (e.g., privileged opinion letters from counsel, which a party may be relying on in intellectual property disputes).
Effectiveness, Cost, and Satisfaction
Early studies are just being published which establish a high effectiveness of the collaborative process, with well over 94% of cases reaching resolution through the process. Anecdotally, lawyers and clients are consistently reporting that it can be quicker, less expensive and less painful than a typical divorce, with approximately 95% of cases reaching settlement. Perhaps more significantly, the subjective quality a Collaborative divorces appears to be substantially better than with litigated divorces.
A Canadian government study found high levels of satisfaction with the process. [ [http://canada.justice.gc.ca/en/ps/pad/reports/2005-FCY-1/2005-FCY-1.pdf] ] Best of all, the collaborative approach helps all the family members come through the divorce with the least amount of trauma and distress. Because the parents aren't fighting, the children adjust better.
tatutes and Laws on Collaborative Law (USA)
In the United States, at least three states have statutes on collaborative divorce (California, North Carolina, and Texas.) Additionally, at least one state (Utah) has a statewide rule on collaborative divorce. A number of other jurisdictions have local court rules on collaborative law. The
National Conference of Commissioners on Uniform State Laws("NCCUSL") is developing a Uniform Collaborative Law Act At least six states and the American Bar Association have issued ethics opinions approving of collaborative law as a dispute resolution method. The Colorado State Bar Association has, however, raised some ethical issues with the practice on the grounds that the nature of the Participation Agreement could give the impression that council has a legal or ethical obligation to both parties rather than just their client.
Being a relatively new
dispute resolutionprocess, there are no formal training requirements by organized bar associations or by law in most jurisdictions (apart from England which now has a formal training and accreditation regime-see below). However, most experienced collaborative practitioners generally agree that a high level of skill in these three areas is required to practice collaborative law well: (1) substantive law, (2) the collaborative process, and (3) interest-based negotiation. In order to achieve the necessary level of competence, it is generally accepted that specialized training in the collaborative process and mediation techniques, and substantial experience handling collaborative law cases, is required.
There is a significant difference between collaborative process and adversarial dispute resolution techniques, and neither education nor experience in the
adversarial systemis adequate to gain even the basic additional skills and perspective that are necessary for collaborative practice.
Unsuitability for Certain Matters
Collaborative divorce may not be a viable option in certain situations. If there is active domestic violence, drug or alcohol addiction, serious mental illness, or an intention to hurt the other party emotionally or financially, traditional litigation or arbitration may be more appropriate. Some states are even considering passing laws that make it mandatory for attorneys to screen clients for domestic violence before recommending Collaborative divorce to them.
Collaborative Law Organisations
The primary global collaborative organisation is the International Academy of Collaborative Professionals (IACP). There are numerous practice groups (or PODS ) of collaborative practitioners worldwide. The American Bar Association ("ABA") ,the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers ("IAML") [http://www.iaml.org/] all have Collaborative Law committees. IACP is an interdisciplinary organization whose members include lawyers, mental health professionals and financial specialists. National Collaborative organisations have been established in many jurisdictions,including Australia [http://www.collaborativelaw.asn.au/] , Austria [http://www.avm.co.at/avm_public/index.php] [http://www.rechtimdialog.at] ,Canada [http://www.collaborativelaw.ca/] ,the Czech Republic, England, France, Germany, Hong Kong, Kenya, New Zealand, Northern Ireland [http://www.afriendlydivorce.co.uk/about.html] , the Republic of Ireland, Scotland [http://www.scottish-collaborativelawyers.com/welcome/] , Switzerland, Uganda as well as the United States.
In England and Wales, Resolution, the family lawyers organisation, has sole responsibility for the training and accreditation of all collaborative professionals. [http://www.resolution.org.uk/editorial.asp?page_id=53 ] Almost one third of all English family lawyers have now completed their collaborative training.
Friendly Divorce Christian Science Monitor – May 21, 2004 [http://www.csmonitor.com/2004/0521/p02s01-ussc.html]
Getting a Divorce? Why it Pays to Play Nice, CNN Money - July 1, 2005 [http://money.cnn.com/magazines/moneymag/moneymag_archive/2005/07/01/8263126/index.htm]
Bringing Harmony to Divorce - article by collaborative lawyers, James Stewart and Charlotte Bradley, published in
The Timesto mark the launch of Collaborative Law in London, 21 November 2006. [http://business.timesonline.co.uk/tol/business/law/public_law/article640680.ece]
Collaborating on Divorce, Forbes - January 16, 2007 [http://www.forbes.com/finance/2007/02/16/divorce-marriage-collaboration-pf-tax-in_er_0216marriage_inl.html]
A Sweeter Parting, Legal Week 29 November 2007 [http://www.legalweek.com/Articles/1073662/Private+Client+A+sweeter+parting.html]
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