Why would I choose Collaborative Practice over other options?
Collaborative Practice or Do-it-Yourself: There are many legal aspects that you may not be aware of involved in divorcing, separating or even working out parenting arrangements. There is always a risk to negotiating issues that have legal implications without a good understanding of the applicable law. Even if you “work things out” and then take your agreement to a lawyer to “file the paperwork,” there may be significant issues that you did not address, or that have been resolved in a one-sided way. If there is a power disparity in the relationship, one party may be at a disadvantage right from the beginning. You may not know what information to ask “the other side” to provide, potentially resulting in decisions made on incomplete information, which may then lead to further disputes. You may not fully understand your legal rights, and may unknowingly give up important legal rights. While this may be the least expensive option, it runs the risk of resulting in an incomplete and potentially unfair resolution.
In the Collaborative process, each party is represented by his or her own attorney. The attorneys make sure that all the necessary issues are addressed, and all necessary information is obtained, with the final decisions being made by the clients. The clients have the benefit of their attorneys’ help and advice while maintaining their ability to set the pace and goals of the process. If there are questions that require the help of other professionals, such as financial specialists, mental health professionals or child specialists, these experts can be brought in to work for the clients. The collaborative lawyers will file the necessary documents with the court at the end of the process with the clients’ consent.
Collaborative Practice or Mediation:17
single neutral person, who may be a lawyer, a mental health professional, or simply someone with an interest in mediation, acts as the mediator for and with the couple. The mediator helps the couple reach agreement, but does not give individual legal advice, and may or may not prepare the divorce agreement. Very few mediators will process the divorce itself through the court system. You would have to do that yourself or hire a lawyer to do it. Retaining your own lawyer to give you independent legal advice throughout a mediation is wise, and most good mediators recommend this. Waiting to secure independent legal advice until late in a mediation often causes difficulties. It is generally better for both spouses to have that legal advice available from the start. In some locales the two lawyers (yours and your spouse’s) sit in on the mediation process, and in other locales they remain outside the mediation process and meet privately with their own client to give their legal advice. Either way, in a mediation, you and your partner should expect to negotiate face to face, directly, with the mediator’s assistance. The two lawyers ordinarily do not take an active role in a mediation. While mediation can work very well for motivated couples with emotional maturity and a shared desire to reach agreement, it can be challenging for many people to negotiate in this way, face to face with a partner during the turmoil of ending an intimate relationship—especially where emotions run high or where communications are difficult.
Collaborative Practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to cooperation and settlement as mediation.18 It is the job of the collaborative lawyers 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 lawyers and reviewed and edited by both the lawyers and the clients, until both clients 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 attorneys in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. Consulting experts used during mediation are not typically required to sign a contract limiting their work to the context of the mediation, and therefore they are not restricted from participating in litigation if the parties go to court.
In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically provides that the collaborative lawyers and any consulting experts will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached.