Collaborative Law is a legal process designed to help people resolve disputes in a rational, non adversarial manner. Families benefit greatly when this process is applied to disputes surrounding separation and divorce.
Lawyers are trained to resolve legal disputes. The traditional way is to file a lawsuit. A lawsuit is a zero sum game where one side must win and the other side must loose. The filing of a lawsuit triggers a lengthy, inefficient and costly discovery process, mandatory mediation (also expensive) and then a trial if mediation fails. Depending on the type of case, clients face tens of thousands to millions of dollars in legal fees and costs to prosecute and defend lawsuits.
Filing a lawsuit without trying less adversarial options takes the most extreme, expensive and time consuming legal action as a first step in an attempt to“win” to a legal case. Not only does this practice border on being unethical as it relates to family law cases, any professional who is engaged in the family court system knows that there is rarely ever a “winner” in a family law case. How can a person “win” a case against their spouse and then turn around and work with them as a partner to raise children? It is simply not rational.
Families are different. Families who must divorce should not be put through the family court system unless or until all other options have failed. Collaborative law benefits families who must divorce in several key ways:
- First, the family is in control. No decisions are made without the every person’s active participation in negotiating the terms of a resolution. The matter will proceed at a pace upon which all agree and no one will be forced to do anything or make impulsive decisions.
- Second, the attorneys model clear, honest and effective communication. Clients learn in the Collaborative Law process how to communicate with their spouse in a way that will foster communication and problem solving obviating the need for court intervention.
- Third, other collaborative professionals are called upon to provide help where necessary. A neutral financial professional, child specialist and/ or divorce coach are often utilized to assist the parties to resolve important issues.
- Fourth, and most important, the lawyers and clients agree in writing that there will be no unilateral court filings. This exclusionary provision permits confidential, honest and open discussions similar to what occurs during a mediation. As a result, the parties and counsel are free to explore numerous options to resolve their issues without the threat that something they say can be used against them in litigation at a later time. The clients are, of course, free to engage in litigation at anytime if they so choose, they just need to get litigation lawyers.
As a practicing litigator for the past 25 years it is rare that I see a family law case that is not appropriate for Collaborative Law. On the other hand, our culture promotes the use of litigation as a first option to resolve legal disputes under the premise that “out of the ashes the phoenix will rise and justice will prevail”. Since it is clear that no one wins in family court, the question then becomes who benefits from the litigation?