Collaborative law is a method of dispute resolution whereby each party retains an attorney, as well as other experts as a case may require, including accountants, mental health practitioners or financial professionals. The parties, attorneys and professionals then sign an agreement committing to work together, outside of litigation, to arrive at the terms of an agreement. The parties and attorneys commit that they will not commence litigation. If the process is unsuccessful, even with the assistance of binding arbitration, and either party seeks litigation, the attorneys involved in the Collaborative process must withdraw and new counsel is acquired.
Advantages to Collaborative Law
a. As a non-adversarial proceeding, this process allows the parties to maintain a healthier relationship during and after the divorce. Privacy is also preserved in the Collaborative law process.
b. Negotiations can occur prior to the filing of any pleadings with the court, allowing the parties to focus on the issues at hand while avoiding allegations about one other.
c. The parties have complete control over the manner and timetable in which the agreement is reached. Settlements to which both parties agree remain sustainable over longer periods of time and invite more consistent compliance than do court ordered mandates.
d. Collaborative law is different from mediation in that the parties each involve an attorney to serve as their advocate, rather than work mutually with an impartial mediator to reach a decision.
e. If a client prioritizes working toward a peaceful amicable solution over winning at all costs, the client’s values will be honored in the Collaborative law process.
f. The requirement that all lawyers be disqualified in the event of a stalemate ensures that all participating counsel will be totally and exclusively motivated to reach an agreement. Thus, all participants are equally and fully invested in finding a solution.
g. Quite often, the costs involved in the Collaborative process are less than that of litigation.
h. In cases with tax concerns or other issues or financial propriety within the parties’ finances that cannot be presented in court, Collaborative law presents a more attractive forum for the case to be resolved.
i. All involved have an economic incentive to reach settlement: the parties, due to the high costs of litigation, and attorneys, because of the forced withdraw if a settlement is not reached.
j. If the parties have children, the direct communication in the Collaborative law process helps preserve a cooperative relationship. This stands to benefit the children as the parties begin the task of co-parenting during and after the divorce process.
k. Collaborative law encourages creative solutions that serve the needs of both clients. These types of solutions may not present themselves as the court simply applies law to the facts of each case.
Disadvantage to Collaborative Law
a. As with all alternatives to litigation, the financial disclosures made by a party are not subject to the same scrutiny for falsity or omissions. However, any discovered fraudulent omission or statement is still subject to further accountability.
b. With mutual agreement, testimony can be provided by third parties, but cannot be required by the court.
c. Clients lose the enforcement right for orders in the litigation process.
d. The requirement that the lawyers withdraw from representation in the event of a stalemate still requires each party to obtain new counsel. However, in the Collaborative law process, both parties can agree to have any unresolved case issues arbitrated.
e. The Collaborative law process, like mediation, may not be appropriate where there is a history or pattern of family violence.