Collaborative Law is a relatively new and growing alternative dispute resolution (ADR) process. It is used primarily in the Family Law area. Like Mediation in Family Law disputes, Collaborative Law helps parties resolve their spousal support, child support, alimony, division of property and child custody issues without having those important and very personal decisions made by an outsider—the court system. Unlike Mediation, in Collaborative Law the parties attend the negotiation meetings together, with their lawyers. And, as explained below, a team of other experts, acting as neutral professionals, is often brought into Collaborative Law to help the parties navigate through the divorce process.
The Collaborative Law model was conceived in 1990 by Stuart Webb, Esquire, a Family Law attorney and mediator from Minneapolis, Minnesota. I had the pleasure of meeting him and attending his Collaborative Law presentation at the 4-day conference of the Academy of Family Mediators held in Minneapolis in 1992 when Collaborative Law was still in its infancy.
Despite Mr. Webb’s recognition that Mediation was often a much healthier process than traditional adversarial divorce, he also realized that Mediation had some limitations and, even without those issues, mediation would not replace the role of lawyers in the divorce process. The real problem, then and now, is that there needs to be a different way of thinking by the courts, and by lawyers who handle divorce and family law disputes. So he came up with a novel idea–have each party be represented by a lawyer to protect his/her interests, but eliminate the common tactics that lawyers often employ instinctively, such as posturing and threatening to go to court.
To achieve this, his idea was conceptually very simple— the parties and their lawyers will agree at the outset that if negotiations break down, the lawyers will be required to bow out of the case and Not Go to Court. In other words, if negotiations break down the parties will be required to start over with new counsel. Thus was born the concept of the Participation Agreement in which this requirement is a core principle, binding on the collaboratively trained and committed counsel and on the parties. With both attorneys mutually agreeing to be disqualified from going to court if settlement talks break down, the parties and their attorneys are thus incentivized to work really hard to negotiate in good faith, without posturing, to reach a fair and equitable settlement.
To be an effective Collaborative attorney requires formal training. But it requires more– the attorney’s ability to think differently about his or her role in how divorce and family law disputes should be handled and resolved. To be open to this change requires a major shift in thinking about problem solving and about being comfortable giving more power to the parties. The fact is, not all lawyers are wired to be able to agree to give up the control and tactics which litigation attorneys are accustomed to using. Another way of saying this is that not all lawyers are able to practice Collaborative Law.
I have had extensive formal training in the Collaborative Law process and am comfortable with its fundamental concept that the parties should be very active participants in the process in which the decisions affecting them and their kids will be made. I have been a member of the Bucks County Collaborative Law Group (BCCLG) since its founding in 2009. See our website at www.BucksCountyCollaborativeLaw.com. I am also a member of the International Academy of Collaborative Professionals (IACP) which has great on-line family resource materials at www.collaborativepractice.com.
Collaborative Law is a wonderful conflict resolution model. In most cases it utilizes an interdisciplinary team of professionals—the parties’ attorneys, a divorce coach and a neutral financial expert. In some cases a child development expert is also involved. The divorce coach is a mental health professional whose expertise is used to help maximize the effectiveness of the parties’ communications—not by providing therapy to either party, but by keeping the parties and attorneys on track. The divorce coach can also be invaluable in helping mom and dad address their children’s needs so they, the parents, can work out a good parenting plan (what the Courts and most lawyers still call “Custody”) for their children. When appropriate, a financial neutral is used to help the parties generate financial options for support issues and property division by taking into account the size and make-up of the parties’ marital estate, and the parties’ respective incomes.
Not all cases are good candidates for the Collaborative Law process; but many are. As much as I do enjoy the challenge of litigating various types of cases, my many years of experience convinces me that litigation and going to court is usually not the best way for families to resolve their financial and parenting issues. That is why I have spent much time and money to train in Collaborative Law and Mediation and why I offer those services. I encourage people facing Family Law disputes to consider the Mediation or Collaborative Law approach as an alternative to fighting in court because going to court usually has a higher emotional and financial cost. When you think about it, allowing a stranger to make your family decisions doesn’t seem to make the most sense. So, when you or someone close to you is facing the prospect of having to go to court over divorce, child support, property division, alimony and/or custody, please call me to discuss what might be the best way for to move forward.