Overview and History
(also called collaborative practice, collaborative divorce, and collaborative family law) was originally a divorce procedure in which the two parties agreed that they would not go to court, or threaten to do so. It has expanded significantly since then. 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, 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 divorces.
In a collaborative divorce, 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.
There is a parallel between collaborative law and mediation, in that both are facilitative processes. However, 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. A comparison chart between collaborative law and litigation is available here: .
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:
The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original attorneys must withdraw and the parties must retain new lawyers (the "disqualification" provision);
Neither party will take advantage of mistakes by the other side;
The parties will freely disclose all pertinent information and will not hide any material facts;
What is said in the settlement meetings remains confidential;
All experts will be neutral, and hired jointly by both parties; and
Everyone will behave courteously and in good faith.
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 there is a relatively high cost to ending the process prematurely. Collaborative law practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Additionally, when court is not an option, it is believed that many collaborative law attorneys will retool to learn the additional skills that may be needed to resolve disputes without resorting to a third party decision maker.
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.
Collaborative Divorce 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, at a minimum, 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 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.
In Collaborative Divorce, the services of divorce coaches or communications coaches ( Family Consultants-UK )are 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. The coaches focus on supporting the needs of one or both clients; the child specialist and financial specialist are neutral, which saves each party hiring his or her own expert.
Use in Other Areas of Law
Collaborative law has 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 the effectiveness of the collaborative process. Anecdotally, lawyers and clients are consistently reporting that it can be quicker, cheaper and less painful than a typical divorce, with approximately 95% of cases reaching settlement. A Canadian government study found high levels of satisfaction with the process.[] 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.
One of the most important features of collaborative divorce is a pledge signed by each lawyer to withdraw if either of the parties decides to go to court. Since both lawyers would lose the clients if an agreement is not reached, they have an extra incentive to help their clients to cooperate and find solutions that honor the concerns of both parties. "Experience shows that collaborative family-law cases are substantially less expensive than cases that are taken to court," Covina, California divorce lawyer Brian Don Levy has written. "At the same time, collaborative divorce is almost always more satisfactory and productive for the participants."
Statutes and Laws on Collaborative Law
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.
Being a relatively new dispute resolution process, there are no formal training requirements by organized bar associations or by law. 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 system is adequate to gain even the basic additional skills and perspective that are necessary for collaborative practice. The International Academy of Collaborative Professionals has established recommended minimum training requirements and ethical principles 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.
Collaborative Law Organizations
The predominant collaborative law organisation in the USA is the International Academy of Collaborative Professionals (IACP). There are more than 200 practice groups (organizations) of collaborative practitioners. Both the American Bar Association and the American Academy of Matrimonial Lawyers have Collaborative Law committees.