Using the collaborative process to resolve a family law matter means more than simply behaving cooperatively.

If you want to make thoughtful decisions about your family outside of court, with the support of a structured and respectful process, the collaborative process may be a good option. It gives families greater privacy, flexibility, and control while helping them work toward durable solutions for themselves and their children.

What is the collaborative process?

The collaborative process allows parties to resolve disputes outside of court. Participation is entirely voluntary, and neither party can be compelled to take part. The process requires full disclosure and focuses on helping the parties identify and achieve goals that serve their family’s best interests.

What can I use the collaborative process for?

The collaborative process can be used to negotiate prenuptial and postnuptial agreements and to resolve issues arising from divorce, including custody, relocation, child support, alimony, and the division of assets. It can also address post-judgment matters, such as enforcing an agreement or modifying custody or support.

How does the collaborative process work? 

The collaborative process begins with a collaborative participation agreement that establishes clear expectations and guidelines for everyone involved. This shared framework helps the parties communicate openly, exchange necessary information, and remain focused on resolving their family law issues outside of court. Many jurisdictions also have laws governing the collaborative process, including Maryland and Washington, D.C.

Who can guide me through the collaborative process?

Generally, each party is represented by a collaboratively trained attorney. The parties and their attorneys work as a team to resolve their family law issues outside of court. Depending on the needs of the case, the parties may also agree to involve other collaboratively trained professionals who are neutral to both parties, such as a financial neutral, coach, or child specialist.

Is the collaborative process affordable?

Even when several professionals are involved, a collaborative case is usually far less expensive than litigation and may also cost less than other forms of alternative dispute resolution. The process is designed to use each professional efficiently, keep discussions focused, and move the family toward resolution at a productive pace. In addition, every professional does not need to participate in every part of the case.

How can the non-attorney professionals be “neutral” if only one party is paying their fee?

A neutral professional’s role does not change based on which party pays the invoice. Collaboratively trained neutrals are expected to provide impartial information, guidance, and advice to both parties.

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. While collaborative law is based on full disclosure of material facts, 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 remain connected through their children long after a marriage ends. Graduations, weddings, birthdays, and other milestones may be occasions when a child wants both parents present. Children benefit when their parents can attend those events and support and celebrate them together.

Collaborative law can be especially helpful in custody matters because it provides parents a structured setting in which to address their parenting concerns while continuing to work toward shared goals for their children. The process is non-adversarial, keeps the children’s best interests at the center of the discussion, and can help parents build a foundation for making future decisions together.

The collaborative process gives participants the flexibility to develop creative, individualized solutions and retain meaningful control over the outcome of their case. Rather than being limited to the remedies a court has authority to order, families can craft agreements that reflect their priorities, circumstances, and long-term goals.

One of my clients who used the collaborative process shared a meal with his former wife and their children nearly every weekend until the children graduated from high school. That arrangement will not be right for every family, but I do not think it would have been possible if they had chosen a different divorce process.

What if my opposing party is not “collaborative” and our issues are complex?

The collaborative process can work in many cases, including matters involving complex issues, significant conflict, or parties who begin the process with different communication styles. One of its strengths is the range of collaboratively trained professionals who can provide information, guidance, and support while helping the parties communicate more effectively and move toward resolution.

If collaborative law is so great, why doesn’t everyone do it?

The collaborative process is not appropriate for every case or every family. Matters involving domestic violence, a substantial power imbalance, or concerns about honesty may not be suitable for the process. In addition, many people do not know collaborative law is an option, and not every divorce lawyer is collaboratively trained.

Does collaborative law always resolve a case?

No process can guarantee that the parties will reach a resolution. Because the collaborative process is entirely voluntary, both parties must choose to participate and remain committed to it. If the matter leaves the collaborative process, the participating professionals generally cannot represent either party or otherwise take part in later contested litigation. A limited exception may apply to a true emergency court filing, but an attorney who makes that filing cannot continue representing the party in the litigation.

Why does collaborative work?

The collaborative process works by helping individuals focus on their family’s best interests and treat one another with dignity and respect. Each party has an opportunity to explain what matters most to them, understand the other party’s priorities, and keep hose goals central to the decision-making process.

With the support of collaboratively trained professionals, families can develop practical and creative solutions instead of being limited to the relief a court has authority to order. The process is also confidential. Except in very limited circumstances, such as credible threats of harm or suspected child abuse, what occurs during the collaborative process is not disclosed.

When do I go to court?

If the collaborative process is successful, you will not go to court for a contested case. The court’s role is generally limited to entering the divorce order and, when appropriate, incorporating the parties’ agreements. The court process is therefore much more abbreviated, and in some circumstances, no one needs to appear in court.

Is the collaborative process right for me?

Whether the collaborative process is right for you depends on the specific facts and circumstances of your family law matter. A collaboratively trained attorney can help you evaluate whether it is a good fit.

Erin Kopelman is a divorce attorney who handles cases involving domestic relations and family law. Erin is also collaboratively trained. For more information, contact Erin at elkopelman@lerchearly.com.