What Is Collaborative Family Law?
Collaborative family law is a voluntary process undertaken by both parties in a divorce, using alternative dispute resolution (ADR). Developed in the mid-1990’s, collaborative family law is a relatively new model, used primarily in divorce proceedings. Although the model itself is contemporary, courts have been encouraging collaboration and mediation for decades. Some states even mandate that the parties attempt some type of out-of-court negotiation before pursuing litigation.
Due to the increasing pressure from the courts to mediate, many family law lawyers are now dedicated to using the structured collaborative law model. In the family law setting, this alternative to litigation may avoid the uncertainty of a court outcome and decrease emotional stress associated with a divorce. Many claim that the collaborative family law approach to divorce results in a more favorable outcome relating to property distribution, support and child custody issues. However, there are both pros and cons to the model that should be taken into consideration.
The following include some, but not all, of the advantages of the collaborative family law model:
- Avoiding Court – A client using the model will, most likely, not be required to go to court very often. If the parties decide to litigate, not only will they have to go to court to present their case, but they also must suffer through scheduling conferences and other miscellaneous hearings.
- Confidentiality – As opposed to court, where a record is kept and the hearings are open to the public, the Collaborative family law process is kept confidential.
- Shared Costs – Many times the parties enter into a contract and share the costs of experts and other resources needed during the process.
- Better Outcome – The process is voluntary, which makes it more likely each party is satisfied when an agreement is reached. Also, the parties tend to honor the agreements after the process is concluded.
- Faster Agreements – Studies have shown that once a case reaches litigation, it typically takes between six months to several years to settle. However, in the Collaborative family law process, the parties are working around their own schedules and agreements are often made in a few months.
Before deciding whether to go through the process, rather than litigate, it is important to understand that there are some disadvantages, including:
- Trust – Because the parties are divorcing, there are often trust issues when it comes to being honest and disclosing all assets and debts. Since the court is not involved, a party may feel that they have more liberty to leave things out.
- Domestic Violence – Courts are reluctant to allow the use of the collaborative family law process in domestic violence cases and the parties may be forced to litigate.
- Conflicting Expert Opinions – As mentioned above, one advantage is that the parties share the costs of experts. However, many times experts have different opinions, especially when it comes to analyzing the value of businesses or property acquired during the marriage. If one party disagrees with the expert, the process is breached and the next move will be litigation.
- Potential Extra Attorney Fee’s – If the process is unsuccessful and litigation ensues, the courts will generally require the parties to hire new attorneys. This means that the parties will be forced to pay two attorneys.
Once the parties have decided to give collaborative family law a try, there is a process that needs to be followed. Remember that the bedrock principle of collaborative law is that parties work out their differences regarding property, support, and custody in a structured and amicable atmosphere. Different methods are used to achieve this amicable atmosphere. They are as follows:
- Amicability agreement is signed: The intent to be amicable is manifested by the parties signing an agreement which promises that both sides will use good faith and fairness in negotiating a resolution to the divorce proceedings. The agreement also promises that there will be full disclosure of all important documents relevant to the divorce.
- Attorney/client adherence to fundamental collaborative law principle: As part of the overall agreement, the parties also agree that if either party abandons the collaborative law process in favor of traditional litigation, then the collaborative law attorneys must also withdrawal from the divorce process. This means that new attorneys will have to be hired should either spouse wish to pursue other methods of litigation.
- Neutral setting requirement: All meetings must take place in a neutral location like a neutral office or meeting space.
- Freedom to discuss: All parties are allowed and expected to openly bring up any matters which ultimately lead to the most positive resolution of the problems involved.
- No neutral third parties are involved in negotiations: Unlike other traditional alternative dispute resolution procedures collaborative law does not involve a "neutral third party" who involves themselves in the negotiations.
- Attorney role changed: Unlike other methods of dispute resolution even though collaborative law attorney represent their clients best interests, attorneys here are meant to be present more for support and encouragement than to drive the negotiation process.
- Use of neutral third party witnesses: Parties may only bring in unbiased neutral third party witnesses to verify accounting, valuations, support obligations, and property divisions.
In recent years, there has been a clear shift towards mediation, negotiation and collaborative law as a substitute to litigation. As such, many attorneys are integrating mediation techniques into their practices. LegalMatch.com provides thousands of articles, blogs and forums dedicated to keeping up with the trends in family law, as well as all other areas of the law. Also, check out our LegalMatch LinkedIn page for additional resources.