Collaborative Practice and Mediation
In mediation, an impartial third party (the mediator) assists the negotiations of both parties and helps to settle the case. However, the mediator cannot give legal advice or be an advocate for either side. If parties have retained attorneys, those attorneys may or may not be present at the mediation sessions. If they are not present, then they are typically consulted between mediation sessions. When there’s an agreement, the mediator prepares a draft of the settlement terms for review and editing by the parties and their lawyers.
Collaborative Practice allows you both to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you and your spouse or partner until everyone is satisfied.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative attorneys and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.
The Collaborative Team
A Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and your Collaborative lawyers. Or, in addition to your Collaborative lawyers, you can choose to include a neutral financial professional, one or more coaches, a child specialist or other specialists you and your spouse/partner believe would be helpful. Your “Collaborative team” will guide and support you as problem-solvers, not as adversaries.
A Conventional Divorce
In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce you often come to view each other as adversaries, and your divorce may be a battleground. The resulting conflicts can take an immense emotional and financial toll on the family and can be especially damaging to the children. Collaborative Practice is by definition a non-adversarial approach. Your lawyers pledge in writing not to go to court. They negotiate in good faith, and work together with you to achieve mutual settlement outside the courts. Collaborative Practice eases the emotional strains of a breakup, and protects the well-being of children. Unlike a court process, Collaborative Practice allows you the opportunity to address emotional issues and consider more creative financial solutions.
Minimizing the Hostility
The guiding principles of Collaborative Practice are respect, dignity, openness and fairness. This respectful tone encourages you to show compassion, understanding, and cooperation. Collaborative professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
Collaborative Practice Step by Step
When you decide on Collaborative Practice, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. You will meet privately and in face-to-face talks with your Collaborative professional team, which may also include coaches, financial professionals and/or child specialists. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final agreement.
Is Collaborative Practice Faster?
Your situation determines how quickly your collaborative process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving—instead of blame and grievances—there’s an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional litigation. Experience shows that Collaborative Practice cases generally take less time than litigated cases.
Collaborative Practice and Your Future
Divorce/separation is both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family’s goals for a smoother transition to the next stage of your lives. Since you actively fashion the agreement, it reflects your priorities and needs and is more likely to last. If you need help in the future with issues, such as parenting time as the children grow older and circumstances change, you have professionals who can help you make the adjustment, or you may return to the Collaborative process.
In other conflicts when the parties will have an ongoing relationship with each other, using Collaborative Practice can similarly create a better foundation for future interactions and conflict resolution.
Four Key Elements
Collaborative Practice (which encompasses the terms Collaborative Law, the Collaborative process and Collaborative divorce) has four key elements:
- The voluntary, free and open exchange of information.
- The pledge not to litigate (go to court for decision-making) and the mandatory withdrawal of both attorneys and other team professionals if either party litigates.
- The professionals’ commitment to use their best skills to assist you in reaching agreement without having to resort to judicial decision-making.
- A balanced commitment to respect both parties’ shared goals.
Collaborative Practice can also be used to resolve disputes involving employment law, probate law, construction law, real property law, and other civil law matters.
Collaborative Practice Beyond Divorce
A Pledge to Collaborate:
Solve problems mutually and privately with active, direct client involvement
Preserve key relationships and business operations
Prevent draining, costly and time-consuming court battles
The important difference between Collaborative Practice and conventional litigation is the commitment to reach an agreement without going to court. The parties maintain control of the process and the decisions instead of relinquishing them to a judge or jury. To reach this goal, while in the Collaborative Practice process the parties agree not to seek court intervention through their commitment to remain in the negotiation process and focus on settlement by design from the outset.
Even in the best circumstances, a dispute can strain communication between parties; keeping the lines of communication open is essential for agreement. Civil Collaborative Practice provides for face-to-face meetings among parties with their respective lawyers, other advisors and neutral experts as needed. Sessions are designed to produce honest, open exchanges and the expression of priorities and expectations through good faith negotiations.
When issues are discussed openly, problem solving is direct and solution-oriented.
The Collaborative process emphasizes identification of suitable solutions. Instead of airing grievances and polarizing parties, Civil Collaborative Practice creates a vehicle and an environment that helps parties reach a superior settlement by building on areas of mutual agreement.
Conflict resolution involves considerations such as financial issues, public image and future relationships. And, managing dispute resolution is challenging and time consuming. One of Civil Collaborative Practice’s attractive options is its team approach. You and your lawyer work together with other professionals, including financial consultants, coaches and other specialists as needed. Scheduling is on the parties’ terms. Your team joins together to streamline the process, control costs, and craft constructive solutions for your dispute’s range of issues.
Disputes can be resolved without burning bridges or severing key relationships – especially important when long-term responsibilities and connections remain after the dispute is resolved. Civil Collaborative Practice preserves the health and continuity of important relationships by preserving respect, encouraging cooperation and creating options and workable solutions.