Collaborative Practice is a new dispute resolution model in which a divorcing couple works as a team with trained professionals to resolve disputes respectfully, without going to court. This team includes attorneys, mental health professionals and financial experts assisting the parties in resolving their conflict through cooperative strategies rather than adversarial techniques and litigation. All participants agree to work together respectfully, honestly, and in good faith to try to find mutually agreeable solutions to the legitimate needs of both parties. No one may go to court, or even threaten to do so.
Although Collaborative Practice comes in several models, it is distinguished from traditional litigation by its inviolable core elements. These elements are set out in a contractual commitment among the clients to:
- negotiate a mutually acceptable settlement without using court to decide any issues for the clients
- withdrawal of the professionals if either client goes to court
- engage in open communication and information sharing
- create shared solutions that take into account the highest priorities of both clients.
In mediation, there is one “neutral” who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable, lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased. If the mediator does not find a way to solve the problem, the mediation will fail or the agreement will be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation sessions and their advice may come too late to be helpful. If there are no attorneys involved, the parties do not have professional advice regarding the agreement is in their best interests.
Collaborative Practice is designed to deal more effectively with all these problems, while keeping the same commitment to settlement. Each side has professional legal advice and advocacy at all times during the process. If one side or the other lacks negotiating skill or financial understanding, the playing field is leveled by the presence of the trained advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to ensure that the process stays positive and productive.
Both sides sign a binding agreement to disclose all documents and information that relate to the issues, early and fully and voluntarily. “Hide the ball” and stonewalling are not permitted.
What happens if one side or the other does play “hide the ball,” or is dishonest in some way, or misuses the Collaborative Practice process to take advantage of the other party?
That can happen. It also can and does happen in conventional legal representation. What’s different about Collaborative Practice is that the collaborative agreement requires a lawyer to withdraw if his/her client is being less than fully honest, or participating in the process with less than full good faith.
For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.
Individual circumstances determine how quickly any divorce process proceeds. However, Collaborative Practice can be a more direct and efficient form of divorce. From the start, it focuses on problem solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court appointments that may be necessary with conventional divorce.
My lawyer says she settles most of her cases. How is Collaborative Practice different from what she does when she settles cases in a conventional law practice?
Any experienced Collaborative Practiceyer will tell you that there is a big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law matters settle figuratively, if not literally, “on the courthouse steps”. By that time, a very great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do.
Nothing could be more different from what happens in a typical Collaborative Practice settlement. The process is geared from day one to make it possible for creative, respectful collective problem-solving to happen. It is quicker, less costly, more creative more individualized, far less stressful, and overall far more satisfying in its results than what occurs in most conventional settlement negotiations.
Because the Collaborative Practitioners have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, Collaborative Practitioners are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families. Collaborative Practitioners do not act as hired guns. Nor do they take advantage of mistakes inadvertently made by the other side. Nor do they threaten, or insult, or focus on the negative either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in.
Collaborative Practitioners trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process.
Collaborative Practice offers a greater potential for creative problem-solving than does either mediation or litigation, in that only Collaborative Practice puts two lawyers in the same room pulling in the same direction to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they pull in opposite directions. No matter how good a lawyer I am for my own client, I cannot succeed as a Collaborative Practitioner unless I also can find solutions to the other party’s problems that my client finds satisfactory. This is the special characteristic of Collaborative Practice that is found in no other dispute resolution process.
Collaborative Practice is guided by a very important principle: respect. By setting a respectful tone, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, Collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
What if my partner and I can reach agreement on almost everything, but there is one point on which we are stuck. Would we have to lose our Collaborative Practitioners and go to court?
In that situation it is possible, if everyone agrees (both lawyers and both clients), to submit just that one issue for decision by an arbitrator or private judge. We do this with important limitations and safeguards built in, so that the integrity of the Collaborative Practice process is not undermined. Everyone must agree that the good faith atmosphere of the Collaborative Practice process would not be damaged by submitting the issue for third party decision, and everyone must agree on the issue and on who will be the decision maker.
Collaborative Practiceyers have different views about this. Some will “sign on” to a collaborative representation with any lawyer who is willing to give it a try. We believe this to be unwise and do not do so.
Trust between the attorneys is essential for the Collaborative Practice process to work. Unless the lawyers can rely on one another’s representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. Unless I have confidence that the other lawyer will withdraw from representing a dishonest client, I would not sign on to a formal Collaborative Practice process (involving disqualification of the lawyers from representation in court if the Collaborative Practice process fails).
Similarly, Collaborative Practice demands special skills from the lawyers–skills in guiding negotiations, and in managing conflict. These are not the skills a conventional lawyer learns. Without them, a lawyer would have a hard time working effectively in a Collaborative Practice negotiation.
And some lawyers even collude with their clients to misuse the Collaborative Practice process, for delay, or to get an unfair edge in negotiations. For these reasons, we do not sign on to a formal Collaborative Practice representation with a lawyer inexperienced in this model. That doesn’t mean we could not work cordially or cooperatively with that lawyer, but we wouldn’t sign the formal agreements that are the heart of Collaborative Practice until we had a track record of mutual trust with the lawyer.
The Collaborative Practice process does not guarantee you that every asset or every bit of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works very hard to conceal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high, and the results uncertain.
You are generally the best judge of your spouse or partner’s basic honesty. If s/he would lie on an income tax return, he or she is probably not a good candidate for a Collaborative Practice divorce, because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty, then the process may be a good choice for you.
Why is it so important to sign on formally to the official Collaborative Practice Agreement? Why can’t you work collaboratively with the other lawyer but still go to court if the process doesn’t work?
The special power that Collaborative Practice has to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the lawyers can still consider unilateral resort to the courts as a fallback option, their thought process does not become transformed; their creativity is actually crippled by the availability of Court and conventional trials. Only when everyone knows that it is up to the four of them and only the four of them to “think their way” to a solution, or else the process fails and the lawyers are out of the picture, does the special “hypercreativity” of Collaborative Practice get triggered. At the moment when each person realizes that solving both clients’ problems is the responsibility of all four participants, that is the moment when the “magic” can happen.
Collaborative Practice is not just two lawyers who like each other, or who agree to “behave nicely.” It is a special technique that demands special talents and procedures in order to work as promised.
Any effort by parties and their lawyers to resolve disputes cooperatively and outside court is to be encouraged, but only Collaborative Practice is Collaborative Practice.
Divorce is both an ending and a beginning. Collaborative Practice helps each spouse anticipate their needs in moving forward, and include these in the discussions. When children are involved, Collaborative Practice makes their future a number one priority. As a more respectful, dignified process, Collaborative Practice helps families make a smoother transition to the next stage of their lives.