Collaborative Law

It is unfortunate that nearly fifty percent of marriages wind up in divorce. And the legal process by which divorces are obtained is confusing, often hostile, and certainly expensive. Since the place to obtain a divorce is in court, one has to sue their spouse in the same way someone would sue for a breach of contract. So a divorce is basically a lawsuit against your spouse. Even the style of a case: “Dick vs. Jane” sounds like a set-up for a fight.

Some of the fallout of traditional litigation is well known. Most adults know someone who has suffered the emotional trauma of a hotly contested custody battle. And some attorneys take the “slash and burn” approach to handling a case – – ignoring the fact that it is the children who ultimately pay the price of the conflict.

Fortunately, there is an alternative to divorce called Collaborative Law, or the Collaborative Process. It seeks to preserve respect between the parties, minimize conflict, and make the children’s interests top priority.

When parties commit to the Collaborative Process, they take off the boxing gloves and gather around a table with the goal of resolving their issues. They sign a written commitment that they agree not to litigate. (Of course, people are always able to change their minds but if they do, all attorneys and other professionals they have hired must withdraw from representation.)

Most cases involve the use of coaches, who are Collaborative-trained Mental Health Professionals. Their role is to help participants understand and control the emotional component of divorce – something that often gets overlooked in traditional litigation. Sometimes emotions can have such a grip on folks that they cannot make rational decisions. In that case, the problem-solving needs to be put on hold until the emotions are dealt with. In traditional litigation, there is no provision for this important step in the process.

In the Collaborative Process, rather than holding cards close, parties agree to fully disclose all information relevant to the case. In addition to giving legal advice, attorneys guide the process to ensure that communication is open and respectful. By identifying interests, the parties define the issues they need to resolve. Then they can identify what information they need to create alternatives, and ultimately move toward reaching an agreement. Complicated? Compare that to the hostility of a trial where it’s “Dick versus   Jane” and an unknown judge deciding everything.

The fundamental philosophy in Collaborative Law is one of respect. If mutual respect is present, then the chances of reaching an accord goes up and hostilities and conflict go down. In contrast, the litigation process by its nature builds up hostilities and capitalizes on conflict.

Attorneys who have gone through the lengthy and expensive training to be instructed in the Collaborative Process believe that there is a better way to resolve marital conflict than simply running to court. And their clients are usually grateful for giving them the opportunity to resolve their differences as peacefully as possible.

The end product of any divorce is a piece of paper signed by a judge which sets the terms as to how people are going to divide property, pay debts, child support and/or alimony, and how they will share time with children. The Collaborative Process empowers people to have the most control over their outcome by avoiding the hostility of the courtroom in favor of creating an environment where they decide their own future. With the help of skilled Collaborative Professionals, they can work together to personally create an outcome they can live with, all while preserving their dignity and that of their children.

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Published May 8, 2020

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