Collaborative Practice, including Collaborative Law and interdisciplinary Collaborative Divorce, is a way for you to resolve disputes respectfully — without going to court — while working with trained professionals who are important to all areas of your life. The term incorporates all of the models developed since Minnesota lawyer Stu Webb created Collaborative Law ideas in the 1980s.
The heart of Collaborative Practice or Collaborative Divorce (also called “no-court divorce,” “divorce with dignity,” “peaceful divorce”) is to offer you and your spouse or partner the support, protection, and guidance of your own lawyers without going to court. Additionally, Collaborative Practice allows you the benefit of child and financial specialists, family professionals, and other experts all working together on your team.
In Collaborative Practice, you commit to:
● Negotiate a mutually acceptable settlement without having courts decide issues.
● Maintain open communication and information sharing.
● Create shared solutions acknowledging the highest priorities of all.
Will it Work for YOU?
Separation and divorce are sensitive personal matters. No single approach is right for everyone. Many couples do find the no-court process known as Collaborative Practice (Collaborative Law/Collaborative Divorce) a welcome alternative to the often destructive, uncomfortable aspects of conventional divorce.
If these values are important to you, Collaborative Practice is likely to be a workable option for you:
● I want to maintain the tone of respect, even when we disagree.
● I want to prioritize the needs of our children.
● My needs and those of my spouse require equal consideration and I will listen objectively.
● I believe that working creatively and cooperatively solves issues.
● It is important to reach beyond today’s frustration and pain to plan for the future.
● I can behave ethically toward my spouse.
● I choose to maintain control of the separation process and not to litigate in court
The Difference Between Collaborative Practice and Mediation?
In mediation an impartial third party (the mediator) assists you both to negotiate and helps you try to settle issues. However, the mediator cannot give either of you legal advice or be an advocate for either side. If you each have lawyers, they may or may not be present at the mediation sessions. If the lawyers are not present you can consult with them between sessions. If you reach agreement, the mediator prepares a draft agreement for review and editing by the lawyers.
Mediation is often used by couples with relatively low conflict who can negotiate without their lawyers present. Collaborative Practice can be used by couples experiencing low, medium or high conflict or trust issues, who want the support of their lawyers and other professionals during the negotiation sessions. Collaborative professionals, who have training similar to mediators, help assure a balanced process that’s positive and productive. When agreement is reached the lawyers prepare a draft agreement for review and editing by both of you.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions that reflect the interests of both spouses. If mediation doesn’t result in a settlement, you may choose to use your lawyer in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, both you and your lawyers sign an agreement focusing everyone on resolution. It specifically states that the Collaborative lawyers and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement.
What is the “Collaborative Team?”
The Collaborative team is the combination of professionals you choose to work with you to resolve issues. If issues are strictly legal, it might simply be you and your Collaborative lawyers. But separation and divorce often involve challenging financial, emotional, or child-related issues. In addition to your lawyers, you may want the support of other Collaborative professionals:
• A Child Consultant can provide insight into concerns of the children and help craft parenting plans.
• A Financial Specialist can help gather and explain financial information and create future projections for settlement options.
• A Family Professional can help you and your partner improve communication and manage conflict.
The Difference between Collaborative Practice & the Conventional Separation/Divorce Process?
A conventional separation or divorce process is based on adversarial principles. Parties choose to use, or often threaten to use, the court system and judges to resolve their dispute. Couples working within an adversarial framework often come to view each other as adversaries, and separation and divorce as a battleground. The resulting conflicts can take an immense toll on emotions – especially your children’s.
Collaborative Practice is by definition a non-adversarial approach. Your lawyers pledge in writing not to go to court. They negotiate in good faith, and work together with you to achieve mutual settlement outside the courts. Collaborative Practice is designed to ease the emotional strains of a break-up and protect the well-being of the children.
Collaborative Practice vs. Litigation
|Who Controls the Process||You and your spouse control the process and make final decisions||Judge controls the process and makes final decisions|
|Degree of Adversity||You and your spouse pledge mutual respect and openness||Court process is based on an adversarial system|
|Cost||Costs are manageable, usually less expensive than litigation; team model is financially efficient in use of experts||Costs are unpredictable and can escalate rapidly including frequency of post-judgment litigation|
|Timetable||You and your spouse create the timetable||Judge sets the timetable; often delays given the crowded court schedule|
|Use of Outside Experts||Jointly retained specialists provide information and guidance helping you and your spouse develop informed, mutually beneficial solutions||Separate experts are hired to support each litigants’ position, often at great expense to both|
|Involvement of Lawyers||Your lawyers work toward a mutually created settlement||Lawyers fight to win, but someone loses|
|Privacy||The process, discussion and negotiation details are kept private||Dispute becomes a matter of public record and, sometimes, media attention|
|Facilitation of Communication||Team of Collaborative Practice specialists educate and assist you and your spouse on how to effectively communicate with each other||No process designed to facilitate communication|
|Voluntary vs. mandatory||Voluntary||Mandatory if no agreement|
|Lines of Communication||You and your spouse communicate directly with the assistance of members of your team||You and your spouse negotiate through your lawyers|
How Does the Collaborative Process Minimize Hostility?
The guiding principle of Collaborative Practice is respect. A respectful tone encourages you to show compassion, understanding and co-operation. Collaborative professionals are trained in non-confrontational negotiation, which helps keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
How Does the Collaborative Practice Work?
When you choose a Collaborative approach, you each hire a Collaboratively-trained lawyer. You meet privately with your lawyers and discuss whether you could benefit from the expertise of Collaboratively-trained Family or Financial professionals. Or sometimes Collaborative Family or Financial professionals are the first ones you see and they refer you to Collaborative lawyers. Everyone agrees in writing not to go to court. Face to face meetings between you and your chosen Collaborative professionals are designed to produce an honest exchange of information and a clear understanding about needs and expectations, especially concerning the well-being of any children. Once you have this information you are supported to generate options and make mutually-acceptable choices about financial and parenting issues. The outcome reached using this team problem-solving approach is documented in your separation agreement.
Is Collaborative Practice a Faster Way to Resolve Separation and Divorce Issues?
Your situation determines how quickly your separation or divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving instead of blame and grievances – there’s an opportunity to strive for respectful results. Full disclosure and open communications help you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce. An agreement reached through mutual problem-solving (as opposed to adversarial negotiations or capitulation) is more durable and more likely to be complied with over the long run.
How Does Collaborative Practice Focus on the future?
Separation and divorce are both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward. It also makes your children’s future a top priority. Collaborative Practice helps you both establish a solid foundation and supports your goals for a smoother transition to the next stage of your lives.