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What
are Collaborative Law, Collaborative Practice, the collaborative
process, and Collaborative Divorce?
Collaborative Law, Collaborative Process, and Collaborative Divorce
are terms often used interchangeably. However, they are all components
of Collaborative Practice, which has these key elements: the voluntary
and free exchange of information; the pledge not to litigate, and
the commitment to resolutions that respect the parties' shared goals.
Collaborative Law describes the legal component of Collaborative
Practice, made up of the parties and their attorneys. Collaborative
Process means the key elements of the process itself.
While
“Collaborative Divorce” refers to resolution of particular
types of disputes (divorce and domestic partnerships), the other
terms can also apply to disputes involving employment law, probate
law, construction law, real property law, and other civil law areas
where the parties are likely to have continuing relationships after
the current conflict has been resolved.
What
is the difference between Collaborative Practice and Mediation?
In mediation, an impartial third party (the mediator) facilitates
the negotiations of the disputing parties and tries to help them
settle their case. However, the mediator cannot give either party
legal advice, and cannot be an advocate for either side. If there
are solicitors for the parties, they may or may not be present at the
mediation sessions, but if they are not present, the parties can
consult their counsel between mediation sessions. Once an agreement
is reached, a draft of the settlement terms is usually prepared
by the mediator for review and editing by the parties and counsel.
Collaborative
Law was designed to allow clients to have their solicitors with them
during the negotiation process, while maintaining the same commitment
to settlement as the sole agenda. It is the job of the solicitors,
who have received training similar to the training that mediators
receive in interest-based negotiation, to work with their own clients
and one another to assure that the process stays balanced, positive
and productive. Once an agreement is reached, it is drafted by the
solicitors and reviewed and edited by the both solicitors and the parties,
until both parties are satisfied with the document.
Both
Collaborative Practice and mediation rely on the voluntary and free
exchange of information and a commitment to resolutions that respect
the parties' shared goals. If mediation does not result in a settlement,
the parties may choose to use their counsel in litigation, if this
is consistent with the scope of representation upon which the client
and solicitor have agreed. In Collaborative Practice, the solicitors and
parties sign an agreement, which aligns everyone’s interests
in the direction of resolution, and specifically provides that the
collaborative attorneys and any other professional team members
will be disqualified from participating in litigation if the collaborative
process is terminated without an agreement being reached. Professional
advice should be sought when deciding whether mediation or Collaborative
Practice is the best process for any individual case.
What
is a "Collaborative Team?"
The premise of the "collaborative team" is that
parties and their chosen professionals act as a problem-solving
team rather than as adversaries. A collaborative team can be any
combination of professionals that the parties choose to work with
to resolve their dispute. It can be just the parties and their collaborative
solicitors, which in all cases comprise the Collaborative Law component
of Collaborative Practice. It can be the parties, their collaborative
attorneys and a financial professional. It can be the parties and
divorce coaches, working as a team either before or after the collaborative
attorneys are chosen and the legal process begins.
What
is the difference between Collaborative Practice and conventional
divorce?
A: In conventional divorce, one spouse sues the other for divorce
and sets in motion a series of legal steps. These eventually result
in a settlement achieved with the involvement of the court. Unfortunately,
spouses going through a conventional divorce can come to view each
other as adversaries, and their divorce as a battleground. The ensuing
conflicts can take an immense toll on the emotions of all the participants,
especially the children.
Collaborative
Practice, by definition, is a non-adversarial approach to divorce.
The spouses—and their solicitors—pledge in writing not
to go to court. They negotiate in good faith, and achieve a mutually-agreed
upon settlement outside of court. The cooperative nature of Collaborative
Practice can greatly ease the emotional strain caused by the breakup
of a relationship, and protect the well-being of children.
What
does Collaborative Practice do to minimize the hostility often present
in divorce?
A: 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.
How
does Collaborative Practice actually work?
A: When a couple decides to pursue a Collaborative Practice divorce,
they each hire Collaborative Practice solicitors. All of the parties
agree in writing not to go to court. Then, the spouses meet both
privately with their solicitors and in face-to-face discussions. Additional
experts, such as divorce coaches and child and financial specialists,
may join the process, or in many cases, be the first professional
that a client sees. These sessions between spouses and their counselors
are intended to produce an honest exchange of information and expression
of needs and expectations. The well-being of any children is especially
addressed. Mutual problem-solving by all the parties leads to the
final divorce agreement.
Is
Collaborative Practice a faster way to get a divorce?
A: 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.
How
does Collaborative Practice focus on the future?
A: 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.
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