Groups of family law attorneys in several [Georgia] locations are using a “collaborative” process to resolve divorce issues, a “middle-ground” between the traditional adversarial divorce process and divorce mediation. The collaborative approach assumes that divorce is a problem to be solved rather than a battle to be won.
Q.: What, exactly, is collaborative family law, and how does it work?
A.: Developed originally by attorney Stuart Webb of Minneapolis, Minnesota and his colleagues, collaborative family law is a process through which the parties to a divorce and their individual attorneys commit themselves to resolving all issues of the divorce by negotiated agreement, without resorting to or threatening to resort to court proceedings.
Collaborative law requires both spouses and both attorneys to sign a collaborative law participation agreement. All parties – spouses and lawyers – agree to take a reasoned approach on all issues. Where positions differ, all participants agree to use their best efforts to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to reach a settlement of all issues. After this agreement is signed, each spouse meets first with his or her lawyer, and then both spouses and their attorneys attend the first collaborative meeting.
Almost all of the business is done in four-way meetings, with both attorneys and both parties present. Nothing happens in secret. The parties involved are free to talk directly across the table to their own lawyers as well as to the other spouse, and to the spouse’s lawyer. Parties are not allowed to threaten litigation or to play games or take advantage.
The attorneys agree ahead of time that, if they cannot help the parties settle the case out of court, they will NOT file a contested divorce with the court. Rather, the attorneys agree in advance that, if they cannot get they case resolved out of court, they will withdraw from the case. Thus, the collaborative law attorneys have a financial incentive to help resolve problems; if they can’t, they are out of a job.
Q.: What are the benefits and limitations of the collaborative process?
A.: A collaborative process is designed to be less time-consuming, less expensive and less confrontational than a traditional adversarial divorce. By reducing stress, it allows parties to focus on the problems to be resolved. The parties to a collaborative process are joined by their own lawyers, who represent their respective interests and can prepare all necessary paperwork. However, the parties have more control over the outcome of a collaborative settlement than of a traditional divorce and settlements are designed to meet each party’s needs. Further, the collaborative process is more private than a contested divorce, which generates court filings, transcripts and hearings in open court.
In situations where the parties cannot agree to try work out their differences together, or do not value a negotiated solution that meets the legitimate needs of both parties, the collaborative process is not likely to be effective.
Q.: How do collaboration and mediation compare?
A.: In divorce mediation, the parties meet with one neutral mediator who does not provide legal advice to either party, but rather helps the parties to reconcile their differences and settle or compromise difficulties. The mediator is only authorized to work with parties to arrive at an agreement, but is not authorized to make a decision or a determination on behalf of the parties. Like collaboration, mediation is workable only when the parties enter the mediation process with the intention of being reasonable and fair in all matters. Mediation does not always result in total agreement. Frequently, agreement on certain issues may be reached through mediation, but other issues may be referred to a court proceeding or a binding arbitration. Mediators generally do not prepare court paperwork, and they do not appear in court with clients. Parties using mediation to resolve conflicts generally consult with their lawyers outside the mediation process.
In the collaborative process, each party comes to the table with his or her own lawyer rather than to a neutral mediator, and each party is fully and individually represented by legal counsel throughout the process. It may helpful for parties who are not skilled in negotiating or in understanding financial or legal nuances to know that their attorneys are protecting their interests during the collaboration. Collaborative attorneys can prepare all necessary paperwork for their clients, and attend the required court hearing where the divorce agreement is presented to the court for approval. Handling a domestic relations case through collaborative law is roughly comparable in cost to handling it through mediation. A case resolved through collaborative law is almost certainly far less costly than a fully litigated divorce trial, both in terms of money and emotional expense.
SOURCE: Ohio State Bar Association