What is Collaborative Divorce?In a collaborative law case, each party selects a lawyer of his or her own choosing who in turn is willing to sign a collaborative law stipulation. The lawyers contractually agree to serve as settlement counsel only; that is to say, they become contractually barred from ever going to court in your divorce case. The spouses themselves of course cannot be precluded from having access to court because in the American constitutional system, access to the courts is an inalienable right which cannot be given up even by consent. A collaborative case proceeds via a series of four-way meetings attended by both spouses and their lawyers. No one ever goes to court except for the filing of papers or other administrative/bureaucratic matters. The lawyers’ jobs are to facilitate the creation of a broader range of possible settlements for both parties than would be available in court, thus helping higher quality individualized solutions to emerge in each collaborative case. If the four-way settlement process breaks down completely, both lawyers are fired instantly if either party elects to go to court on a contested issue. Thus, unlike all other legal models, the risk of failure to achieve settlement out of court is distributed in large part to the lawyers as well as to the parties. This distribution of risk is a very powerful tool. It is a fact of life that in the normal friendly negotiation model of representation, where the option of going to court has been reserved by all parties and their counsel, lawyers frequently threaten to go or actually go to court as part of the negotiating process. The paradox is that those very lawyers who lost control of the settlement process also end up being financially rewarded as a direct consequence of their settlement efforts failing, because if a case goes to trial, the lawyers generally earn far more in fees. In the collaborative process, the opposite occurs. If the settlement efforts fail, both lawyers suddenly find themselves disengaged. As you can imagine, the public has been embracing collaborative law with a great deal of enthusiasm. The model has been available in the legal profession for a little more than a decade, for which reason comparatively few family law attorneys have so far been trained in the process and have developed the new set of skills required to manage such cases effectively. The lawyers who do accept these cases tend to prefer this model strongly over all other practice/settlement modalities – hence the field is growing very rapidly. Your spouse should have no difficulty locating experienced, well-trained collaborative counsel in this locale. Collaborative law is well suited to cases where both parties are intelligent, where both parties value active participation in the design of the settlement process itself, and where both lawyers are willing to execute a collaborative stipulation in good faith, and who have talents as facilitators of quality settlements. From what you have shared with me regarding your situation, I believe collaborative law may be the ideal choice for your probable needs. Divorce is rarely easy. In a well-managed collaboration, each spouse is generally provided the opportunity to play a primary role in the creation, design and implementation of quality solution to their marital dissolution disputes in a controlled and emotionally safe process. In contrast, in the traditional court process, judges who know very little about your case, who are under-informed as to the facts, and whom each of the parties and their counsel are actively seeking to persuade at the expense of the other side, ultimately impose solutions upon both parties. In my experience, these solutions almost never are better than those solutions the parties themselves would have designed had they known beforehand where that traditional system was likely to lead both of them and what the emotional and fina |
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