FAQ

What is Collaborative Family Law?

Some ninety percent of all legal actions eventually settle out of court before trial. Many reach settlement only after years of financially and emotionally draining adversarial negotiation and trial preparation.

Collaborative law – the practice of settling cases without court intervention – provides an alternative. Encouraging mature, cooperative and non-combative behavior and agreeing to avoid litigation create an environment where both parties and their attorneys are committed to reaching an efficient, mutually agreeable settlement – out of court.

Collaborative family law focuses on resolving divorce and separation issues. It is practiced by specially trained, experienced family lawyers who, when handling a collaborative law case, devote all of their efforts to reaching settlement.

Why should we consider it?

You are a vital part of the settlement team (consisting of both parties and both attorneys).
You are each supported by your lawyers, and yet you work cooperatively with your spouse and his/her lawyer in resolving your issues.
Everyone can focus on settlement without the threat of “going to court” and getting bogged down for many months waiting for a court date.
The process is much less fear and anxiety producing.
You control the proceedings; your destiny is in your hands rather than in the hands of a third party (the courts).
The possibility exists that the participants can create a climate that facilitates “win-win” settlements.
When children are involved, parents must resolve important issues with significant thought to the after-effects. Collaborative Family Law provides a positive context in which to deal with these concerns without resorting to litigation.

Are we suitable for collaborative law?

The collaborative model is based upon the following beliefs and procedures. If you are willing to abide by them and you and your spouse want to be the ones making decisions about your divorce, then you are good candidates for collaboration.

We commit ourselves to settling our case without court intervention.
We agree to give full, honest, open disclosure of all relevant information.
We agree to engage in informal discussions and conferences to settle all issues.
We will work to protect the privacy, respect and dignity of everyone involved, including parties, attorneys and experts.
We commit to maintaining a high standard of integrity and specifically will not take advantage of each other.
In resolving issues related to our children we shall make every effort to reach amicable solutions that promote our children’s best interests.
We agree to promote a caring, loving and involved relationship between our children and both parents.
We agree not to seek a parental responsibilities evaluation.
We agree to insulate our children from involvement in our disputes.
We agree to not use threats of litigation as a way to force settlement.

What are the other approaches to divorce?

Below are the choices for obtaining professional legal services in divorce that are available in most localities today. The list moves from choices involving the least degree of professional intervention, and the most privacy and client control, to choices involving greater professional intervention and the least privacy and control.

Unbundled Legal Assistance: The client in this model acts as a “general contractor” and takes primary responsibility for the divorce, making use of legal counsel on an “as needed” basis to help in resolving specific issues, drafting papers, and so forth. The lawyer doesn’t take responsibility for managing the case. (In Colorado, parties may file “pro se” with the court – without representation – using an attorney for advice but not directly involved with managing the case with the court.)

Mediation: A 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 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. Few mediators will process the divorce through the court. Retaining one’s own lawyer for independent legal advice during mediation is generally wise. In some locales, lawyers sit in on the mediation process, and in other locales they remain outside the mediation process. Mediators do not have to be licensed professionals in most jurisdictions.

Collaborative Law: Each person retains his or her own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues. All negotiations take place in “four-way” settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, the collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer’s job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process, but all the decisions are made by the clients. The lawyers generally prepare and process all papers required for the divorce.

Conventional Representation: Each person hires a lawyer. The lawyers may be good at settling cases, in which case they work toward that goal at the same time that they prepare the case for the possibility of trial. If the lawyers are not particularly good at, or interested in, settling the case all lawyer efforts are aimed solely at preparing for trial, though a settlement may still result at or near the time of trial. Either way, the pacing and objectives of the legal representation tend to be dictated by what happens in court. Cases handled this way generally take longer to complete, than collaborative law cases or mediated cases. The risk of a high conflict divorce is higher than with mediation or collaborative law.

Arbitration, Private Judging, and Case Management: In some states, it is possible for clients and their lawyers to choose private judges or arbitrators who will be given the power to make certain decisions for the clients as an alternative to taking the case into the public courts. Case management is an option available from private and some public judges, in which the judge is given the power to manage the procedural stages of pretrial preparation, as well as settlement conferences, by agreement of the clients and their lawyers. These options can reduce somewhat the financial cost and delays associated with litigation in the public courts. The financial and emotional costs may still remain high, however, because positions are polarized and the lawyers have no particular commitment to settlement as the preferred goal, and continue to represent the client whether the case settles or goes to trial.

“War”: One or both parties is motivated primarily by strong emotion (fear, anger, guilt, etc.) and as a consequence the parties take extreme, black and white positions and look to the courts for revenge or validation. Reasonable accommodations are not made. The attorneys often function as “alter egos” for their clients instead of counseling the clients toward sensible solutions. This is the costliest form of dispute resolution, emotionally and financially. It is always destructive for the children involved. Such cases can drag on for many years. Few clients report satisfaction with the outcome of cases handled this way, regardless of who won.

Source: Handbook for Clients (see link below) an orientation to the process, the dispute-resolutions available to clients and the new dispute resolution option, “Collaborative Law”. American Bar Association, 2001

Is it the best choice for me?

It isn’t for every client (or every lawyer), but it is worth considering if some or all of these are true for you:

You want a civilized, respectful resolution of the issues.
You would like to keep open the possibility of friendship with your partner down the road.
You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
You want to protect your children from the harm associated with litigated dispute resolution between parents.
You and your partner have a circle of friends or extended family in common that you both want to remain connected to.
You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).
You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
You place as much or more value on the relationships that will exist in your re-structured family situation as you place on obtaining the maximum possible amount of money for yourself.
You understand that conflict resolution with integrity involves not only achieving your own goals but also finding a way to achieve the reasonable goals of the other person.
You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge—fixing the problem rather than fixing blame.

Source: Handbook For Clients (see link below) an orientation to the process, the dispute-resolutions available to clients and the new dispute resolution option, “Collaborative Law”. American Bar Association, 2001

What if we cannot reach settlement?

In collaborative law, your attorney’s goal is to design acceptable settlement options. That means if the collaborative law process proves unsuccessful or either party wants litigation, both lawyers must withdraw from the case. They will then help their clients find trial lawyers and will work to make a quick, efficient transition. Although your lawyer will refund any unused fees, your new lawyer may require a separate retainer fee.

What are the benefits?

It creates a cooperative environment where communication remains open, which provides a setting where you can work with your spouse to meet your children’s’ needs – regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.
It establishes a team instead of adversaries. Your attorney supports you; your spouse’s attorney supports your spouse, but you all work together. In working together, you retain control of the process.
In matters requiring expert opinions, both parties can jointly hire one or more independent consultants. That helps shorten the duration of the case and reduce the overall expense.
You and your spouse shape the agreement together, which means you are more likely to keep it. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result.
You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.
Your issues stay within the collaborative law setting. That gives you more privacy and greater confidentiality, and less stress during an already stressful time.

Why is it so effective?

Because the collaborative lawyers 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 lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families.

Collaborative lawyers do not act as a 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 lawyers 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 Law offers a greater potential for creative problem solving than does either mediation or litigation, in that only collaborative law puts two lawyers in the same room pulling in the same direction with both clients to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they generally pull in opposite directions. No matter how good the lawyers may be for their own clients, they cannot succeed as Collaborative Lawyers unless they also can find solutions to the other party’s problems that both clients find satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.

Who practices collaborative law?

A lawyer who practices collaborative family law is specially trained in that process in addition to having traditional legal experience. Additionally, the lawyer has focused on domestic relations – family law.

Lawyers practicing collaborative family law commit to the process as well as its outcome. They receive special training and education that encourages mature, cooperative and non-combative behavior. They treat both parties as participants in the settlement team.

Lawyers who practice collaborative family law protect the privacy and dignity of all involved in the process. They uphold standards of integrity and, if inconsistencies or mistakes are discovered, seek to correct them.

Collaborative family law attorneys expend as much effort working toward settlement as they would to prepare and conduct a hearing. As needed, they provide complete, honest and open disclosure of all relevant matters and advise their clients in all legal avenues. Usually, however, they do this without formal proceedings and will employ mediators if the parties find themselves at an impasse.

The other professionals (financial professionals, divorce coaches, mental health professionals, child specialists) who may be part of the collaborative team supporting you during the process, will also be trained in the collaborative approach.

Most collaborative divorce professionals are members of CCLP and can be found in the Members area of this site.

How can I enlist my spouse in this process?

Talk with your spouse and see whether there is a shared commitment to the collaborative, win-win conflict resolution process.

Share the information on this website, including the client handbook and articles.

Encourage your spouse to select counsel who has experience and training in collaborative law and who works effectively with your own attorney: attorneys who trust one another are an excellent predictor of success in dispute resolution. You can find attorneys who are members of CCLP on this site. Additionally, there are a number of collaborative law practice groups in Colorado where attorneys and support professionals work and train together to build trust and confidence among the group members in order to serve clients better.