Most divorce cases are fraught with anger and tension, as each side works to get as much out of the case as possible. Although a significant number of divorces are settled without reaching court, the settlements are often rushed, with the impending trial forefront on everyone’s minds. By the time settlement is reached, both parties may have spent months or years and thousands of dollars fighting a bitter dispute. By that point, it may be too late for amicability in parenting or future friendship. Children, friends and relatives may also be affected, feeling the need to choose sides.
Collaborative law seeks to address the escalating financial and human toll of modern divorces. The process is not right for everyone, but many divorcing families feel that the process allows both parties to come to a reasonable solution with their dignity intact. Here is a basic guide to the new model of collaborative law.
What is Collaborative Law?
Collaborative law can be considered a new evolution of mediation. In mediation, one mediator is responsible for handling the very different concerns of two opposing parties. If one party becomes emotionally distraught or unwilling to negotiate, then the mediator may have trouble resolving that situation without being accused of bias.
In collaborative law, each party retains a lawyer. Everyone involved must sign a formal agreement that the issues of the divorce will be resolved through the collaborative process of all four people working together. Should the collaboration fail, the lawyers will be removed from the case, unable to represent those parties against each other in court.
The formality of the program and the inability to use a court trial as a fall-back option can lead to a creative and productive process. The foursome is responsible for finding solutions that work for both sides. The process is generally much less expensive and time consuming than a traditional divorce proceeding.
Who Can Use Collaborative Law?
Although anyone is entitled to go through the collaborative law process, it is not right for everyone. Both spouses, though angry and hurt, must truly believe in the other’s basic honesty. Likewise, both must be willing to fully disclose their assets, income and other relevant information. Withholding information is generally grounds to dissolve the collaborative law agreement.
The lawyers must also be specially trained and trusting of one another. While in a traditional divorce case, each lawyer works to get his or client as much as possible without regard to the other’s needs, the collaborative lawyers work to find a fair balance for both parties. It is essential that each lawyer trust the other’s ethics.
What if an Issue Cannot Be Resolved?
Ideally, the collaborative law process will resolve every detail of a couple’s divorce. However, there are times that a single issue proves to be a sticking point. In that case, the foursome may decide to turn over that single issue to an arbitrator or judge for resolution. This solution should be used only as a last resort, and only if all four can agree on who the decision maker should be.
The Bottom Line
If divorcing spouses are interested in quickly and amicably resolving their divorce, collaborative law may be a useful option. In order for the process to work, both spouses and both attorneys must trust each other to work toward the common good. Collaborative law is not for everyone, but for many couples it is an excellent alternative to a drawn out court case.