Collaborative divorce is a divorce procedure in which the two parties agree that they will not go to court, or threaten to do so. The parties strive to reach a fair settlement through a series of four-way meetings between the two parties and their attorneys.This new approach to conflict resolution was created in the early 1990s by a family attorney named Stu Webb, who saw that traditional litigation was not always helpful to families, and often was damaging. The collaborative law movement has spread to over 26 states, Europe, Canada and Australia. You can find the website for the national collaborative group at www.CollaborativePractice.com. Pauline Tesler, a family attorney from California, wrote the first collaborative law book called Collaborative Law, a publication of the American Bar Association.
The key document in a collaborative case is the participation agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and attorneys agree that:
- the lawyers will not litigate the case. If the settlement process fails, and litigation is the only recourse, the original attorneys must withdraw and the parties must retain new attorneys;
- neither party will take advantage of mistakes by the other side.
- the parties will freely disclose all pertinent information and will not hide any material facts;
- what is said in the settlement meetings remains confidential; and
- everyone will behave courteously and in good faith.
Collaborative divorce makes use of a team approach to help the couple make fully-informed, carefully considered settlement decisions. When appropriate, the group brings in outside consultants to help resolve the conflict. Where the couple has minor children, a mental health professional is often brought in as "child specialist" to educate the parents as to the developmental needs of children, and to present options for parenting plans/schedules. Where one or both parties need extra emotional support, divorce coaches are brought in to help the party clarify his/her needs, plan for the future, and stay focused throughout the negotiations, all of which reduce the normal anxiety often experienced in the divorce process. In addition to mental health experts, neutral financial experts are also brought in as needed. Some of the ways a financial expert helps are to evaluate the worth of a business, present options for dividing the assets or retirement funds, and help explore options for ensuring financial security for the parties. A financial coach may be used to help educate a party who has not been involved in managing the family finances over time and needs extra support to learn the necessary information in order to negotiate effectively. The coaches focus on supporting the needs of one or the other clients; the child specialist and financial specialist are neutral, which saves each party hiring his or her own expert.
Collaborative law has spread from family law to other fields of law. Practitioners are now applying it to business, probate, employment and personal injury cases.
Early studies are just being published which establish the effectiveness of a collaborative approach. Anecdotally, lawyers and clients are reporting that it can be quicker, cheaper and less painful than a typical divorce. Best of all, the collaborative approach helps all the family members come through the divorce with the least amount of trauma and distress. Because the parents aren't fighting, the children adjust better.
One of the most important features of collaborative divorce is a pledge signed by each lawyer to withdraw if either of the parties decides to go to court. Since both lawyers would lose the clients if an agreement is not reached, they have an extra incentive to help their clients to cooperate and find solutions that honor the concerns of both parties.
Collaborative divorce may not be a viable option in certain situations. If there is domestic abuse, drug or alcohol addiction, serious mental llness, dishonesty, or an intention to hurt the other party emotionally or financially, traditional litigation may be more appropriate. Collaborative law differs from mediation in that mediating parties still have the option of keeping their original lawyers if they can't settle and the case ends up going to court. In mediation the mediator is a neutral third party who doesn't represent either side, though each party usually has a lawyer available to consult with throughout the mediation process.
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