It’s a common scenario: You don’t want a court to determine your family’s affairs, but you do want a structure in place to ensure you (and your children) get a fair outcome.
You have options and one of the best is the collaborative process.
What is the collaborative process?
The collaborative process is another method (or process) by which parties can resolve disputes between themselves. It is entirely voluntary and parties cannot be compelled to participate. The collaborative process is based on full disclosure and is goal oriented with parties working together to reach identified goals.
What can I use the collaborative process for?
The collaborative process can be used for family law cases, including those related to:
- Child Custody
- Child Visitation
- Child Support
- Spousal Support/Alimony
- Prenuptial Agreements
This sounds great but how does this work? Are there rules for the collaborative process?
Yes. The individual process is governed by a collaborative participation agreement that all parties will sign. In this region, collaborative participation agreements are detailed and set for the rules and guidelines for parties in collaborative cases. Additionally, many jurisdictions have passed legislation to address and govern the collaborative process. By way of example, Virginia, Maryland, and Washington, D.C. have all enacted legislation governing collaborative law and cases utilizing the collaborative process.
Now that I know the rules, who can help me in this process?
Generally, professionals have to be specifically trained in the collaborative process to participate in a collaborative case. In Washington, D.C., Virginia, and Maryland, each party has to have an attorney, and those attorneys have to be trained in the collaborative process to represent clients in a collaborative case. Depending on the needs of the case, in addition to attorneys, other professionals such as financial neutrals, divorce coaches, and child specialists may or may not be involved. These professionals will also be trained in the collaborative process as well as their individual professional fields, allowing them to work together and guide the parties throughout the process.
That sounds like the involvement of a lot of professionals, a.k.a. can I afford this?
It depends. Often, a collaborative case is far less expensive than litigation despite the number of professionals in the room. This is because the cost of litigation is entirely avoided and the cost of litigation can be quite substantial, unpredictable, and to a certain extent, uncontrollable. Also, not every professional is needed in every case and not all professionals are working on every piece of the puzzle.
Are professionals really “neutral” if only one party is paying their fee?
Yes! Though it may be counterintuitive, these neutrals are trained at being just that, neutral. The specific logistics of which party compensates a professional has no bearing on that professional’s opinion and advice.
But wait, is my attorney a neutral? Do I still have attorney-client privilege with my lawyer?
Your individual lawyer represents you alone and is not a neutral. Collaborative law is based on full disclosure of material facts but parties still have the attorney-client privilege with their respective counsel. And, in collaborative cases, attorneys are bound by the same Rules of Professional Conduct (including confidentiality) as in non-collaborative cases.
Why should I use collaborative law for my child custody or visitation matter?
Parents are in the unique position of having a long life together even if they themselves are no longer together. They are forever connected through their child(ren). There will be life events wherein a child will want and benefit from both parents being present – think preschool music concerts all the way to graduation ceremonies to weddings and the birth of children. Your child(ren) will benefit from their parents being able to attend these events together and be in the same space to support and celebrate them.
Collaborative law can be a real boon in these situations because while the parties are on different “sides” from each other in the collaborative process, they are at the same table. The nature of the collaborative process is non-adversarial and goal-oriented. Put another way, a child custody case in the collaborative process, for example, might focus on how parents can keep a child in the same school system as opposed to which parent will have “primary custody” of that child. Or, how parents can maintain a child’s routine and activities as opposed to how much child support one parent will pay the other.
Additionally, the collaborative process affords participants the ability to be creative and control the outcome of their case. Courts are limited in their ability to craft resolutions by virtue of the legal authority bestowed upon them (i.e. what a Judge is allowed to do) and time. Similarly, Judges do not necessarily know what is important to parties and what is best on the “day-to-day” for a family. This is not because they do not understand or do not care. Rather, by virtue of being impartial, a Judge is a stranger to families that appear before them. Additionally, just as co-workers come from different circumstances, Judges do too. So, while a Judge may not celebrate a specific event, it may be crucial to a particular family. The converse is also true. Judges simply do not have the ability to be in the same position as a child’s parents when determining what is best for that child.
My opposing party is anything but “collaborative” and our issues are complex. Can this work for me?
Yes! A little known fact is that the collaborative process can work for all kinds of cases with all kinds of issues and all types of people and personalities. One of the (many) benefits of choosing collaborative is that there is a full range of professionals available to help and provide guidance and information which can move high conflict and otherwise difficult cases to resolution.
If collaborative law is so great, why doesn’t everyone do it?
Candidly, it is not for every case and every situation. Matters involving domestic violence, substantial dominance/imbalance of power between parties, and a lack of honesty should most likely be screened out of the collaborative model.
Also, not everyone knows about it.
Maybe I’m a pessimist – what if it doesn’t work?
It happens. First, collaborative law is voluntary. This is good in the sense that parties participate willingly and are vested in the success of the process. This also means that no one can be forced into the collaborative process or to stay in the collaborative process. However, if the matter leaves the collaborative process, the professionals involved cannot represent parties or otherwise be involved in subsequent litigation. The exception is a true emergency court filing and, even then, an attorney can file an emergency matter but cannot continue to represent a party that he/she represented in the collaborative process.
Similarly, the collaborative process is confidential. So, absent very limited circumstances (credible threats of harm to a party, professional, or child abuse), nothing that occurs during the collaborative process can be disclosed. Likewise, professionals that participate in a collaborative case cannot be called to testify about what happened during the collaborative process absent the aforementioned limited circumstances.
So when do I go to court?
If collaborative law is working, never… at least not in the context of a contested case. Generally, the court will have to be involved at some point but if collaborative has worked as designed, the court is only involved for a limited purpose, e.g. to officially enter an order of divorce, to incorporate agreements related to child custody, visitation, child support, etc. into a court order, etc.
In these instances, the court is involved not because collaborative did not work, but because, legally, only the court can divorce parties and because only a court can make an agreement between parties into a court order. In these situations, the court process is much more abbreviated and, in some circumstances, no one needs to appear in court at all.
Is the collaborative process right for me?
A collaboratively trained professional can help you answer this question based on the specific facts and circumstances of your matter.