sistance in a specialized and structured framework to achieve effective outcomes for families in transition. Interest in collaborative law is growing and is now practiced in the U.S., Canada, United Kingdom, New Zealand and Switzer- land.
What is collaborative divorce?
As defined by the IACP, “Collaborative
Law, Collaborative Process, and Col- laborative Divorce are terms often used interchangeably. However, they are all components of Collaborative Practice, which has these key elements: 1) the voluntary and free exchange of information,
2) the pledge not to litigate and the withdrawal of both attorneys -- and in most cases all of the other profes- sionals on the team -- should either party initiate litigation despite this pledge, and
3) 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 attor- neys. Collaborative Process means the key elements of the process itself.”
How does the collaborative process work?
Collaborative law takes place outside
the court process. Collaborative practice uses a cooperative team approach rather than an adversarial approach to arrive at an equitable divorce settlement. The core of any collaborative team is the two divorcing parties and their respective collaborative lawyers. Before the process begins, the lawyers and their clients formally contract to work together to resolve their issues in an atmosphere of honesty, cooperation, integrity, and professionalism. Both lawyers contract not to take the case to court. All par- ties sign a contract titled Participation Agreement (often referred to as a four- way) stipulating their commitment to the collaborative process. In traditional
Winter 2008
litigation the divorce process begins with the filing of a lawsuit. The collaborative process begins with the signing of the Participation Agreement. Given the voluntary nature of par-
ticipation in the collaborative process, coupled with the specialized training of the attorneys, the parties themselves are able to completely control the process, outcome, and their futures. All decisions are reached jointly and voluntarily. Fam- ily matters can remain private. Within this framework and given the voluntary nature of the process, anger, suspicion and paranoia decline dramatically.
financial documents, and provide possible settlement options;
• Child specialists to represent any children, and present their concerns and needs; and
• Case managers, often one of the coaches, to keeps everyone in- formed and on track.
What is the attorney’s role? In a collaborative divorce, the client’s
attorney is not neutral. Attorneys fully represent their clients, but with a change in emphasis and attitude. Instead of tak- ing an adversarial approach, lawyers who practice collaborative law emphasize
Given the voluntary nature of participation in the collabora- tive process, coupled with the specialized training of the attorneys, the parties themselves are able to completely control the process, outcome, and their futures. All deci- sions are reached jointly and voluntarily.
Collaborative practitioners work as
part of an inter-disciplinary network of professionals to resolve conflict and pro- vide expertise and advice to the entire team on issues relevant to the ultimate settlement of the case. Team members sign a document titled Statement of Understanding Among Team Members which affirms their commitment to work together as a team with the com- mon goal of resolving all issues in a way that best meets the needs of all involved. Each team member should ascribe to the ethical guidelines set forth by the IACP that prohibit team members from becoming involved in court proceedings connected to a case and demand with- drawal should the collaborative process fail and the case move to court. Additional team members, chosen
jointly at the outset, may include: • Divorce coaches for each party, to assist with communication skills, self-management, and negotiation skills;
• Financial advisers to provide accurate, impartial financial infor- mation, assist in gathering necessary
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mutual respect and cooperation. Both lawyers are trained to consider the other party’s perspective in order to help both reach agreements that accomplish the goals of both and preserve the welfare of the entire family, particularly the children. As in any divorce proceeding, the
lawyers serve as a resource, educator and advocate for their clients. They perform the usual investigations and determina- tions and help their clients organize disclosure documents and understand those provided by the other party. The lawyers apprise their respective clients of their legal rights and obligations, and guide their clients in analyzing the consequences of competing options. Collaborative law diverges from
traditional litigation practice in that a collaborative lawyer tries to anticipate conflict, works to achieve creative solu- tions to problems that are acceptable to both parties, and strives to manage the divorce process to promote cooperative resolution in a setting of mutual respect and dignified behavior. Specialized train- ing helps a collaborative practitioner
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