The Collaborative Process in Divorce and Family Law Cases

The most common kind of case in which the collaborative process has been used to date is unquestionably divorce and family law disputes.  If you are presented with a divorce or other family law matter which requires resolution, the beginning point in evaluating whether collaborative family law is right for you is to understand the major models of dispute resolution which are available.

There are a number of procedural models which cay be used to resolve a divorce or family law matter.  The most commonly identified procedural options would include pro se, mediation, collaborative family law, and traditional negotiation / litigation. These options can be seen as points along a continuum, which might be depicted as follows:
 

FAMILY LAW DISPUTE RESOLUTION OPTIONS

Pro se  --->  Mediation  --->  Collaborative Family Law  --->  Traditional Litigation

These models vary in a number of ways, including the degree of professional assistance involved, the extent of court intervention, and the amount of associated financial cost, with each increasing (generally speaking) as you move farther to the right on the continuum.

None of these options is right for everyone, and the starting point in determining which of them is right for you is to develop an understanding of each model and its associated advantages and disadvantages. Each of these models will be discussed separately below.

What is the traditional litigation model?

In the traditional divorce, both parties hire attorneys. The attorneys provide legal advice and represent the positions of their client in negotiations and court hearings. This model is an adversarial process in which each attorney advocates positions based on the personal needs and viewpoints of their client. The parties communicate through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their divorce. The process may involve the use of formal legal procedures, known as "discovery" to secure financial and other relevant information. This may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Each party may hire experts to support their positions. Experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants, and other investigators. If the parties dispute the legal custody or physical placement schedule for their children, the court will appoint a third attorney, called a guardian ad litem, to participate in the case as an advocate for the "best interests" of the children. Issues can still be resolved in the litigation model by means of an agreement of the parties which is submitted to the court for approval, and this often occurs in litigation model cases. Unfortunately, however, it is not uncommon for the parties to be unable to reach agreement until after substantial time, money and emotion has been spent in conflict. Ultimately, if agreements are not reached on any one or more issues, the parties and possibly other witnesses would need to testify before a judge, who would then make a decision on each disputed issue.

Possible disadvantages of Traditional Litigation / Negotiation might include:

1. The adversarial nature of litigation might cause either or both parties unnecessary stress or anxiety and/or might contribute to a polarization of their positions.

2. Often the lack of any way for the parties to directly participate in an effective fashion. The process is ultimately centered on “the law,” as applied by judges and court commissioners and as presented and argued by lawyers.

3. Litigation is a public process. Most documents and court hearings are open to the public as a matter of law.

4. The pace and timing of the steps needed to reach resolution are often largely subject to court dockets and other factors beyond the parties’ control.

5. The parties have little control over the outcome if a contested decision is sought. Family court commissioners and judges are often quite limited in what the law allows them to do. Outcomes are often “win-lose” at best, and once a decision is rendered, the outcome is imposed even if it is far from what either party would have preferred.

6. Potentially very significant and rapidly incurred cost.

Potential advantages of Traditional Litigation / Negotiation might include:

1. Very well defined and structured process.

2. The ability to compel the cooperation of the opposing party and third parties in providing information.

3. Availability of formal legal tools to enforce compliance with the law and court orders.

4. The possibility for only one attorney to be retained if one party wishes to be represented and the other does not.

What is “Pro Se”?

“Pro se” is a Latin phrase which literally means, “for myself.” As the name suggests, in a pro se divorce or family law dispute, the parties do not hire attorneys, they do it themselves. They proceed on their own to draft and file the necessary court documents including the summons and petition, financial disclosure statements, any motions, the settlement agreement, if any, and the final judgment or order. In some areas, pro se form kits are available at the courthouse. The parties must either work out an agreement together or present their legal issues to the court. If an issue is not agreed upon, the parties have to be prepared to act as their own lawyers, which means they must call witnesses, ask questions of the opposing party and tell the court why their request for specific orders should be granted.

Possible disadvantages of the Pro Se model might include:

1. Neither party may understand the law or their legal rights, since they do not have the benefit of legal advice.

2. One of the parties may be exploited and taken advantage of based on unequal knowledge, sophistication, resources, bargaining power, emotional strength, or other factors, which could have been effectively remedied by the party being represented by an advocate.

3. The parties may be unable to accomplish what is required to commence or conclude their case, since they lack the skills needed to reach agreements and/or do not know how to present their case to a court on a contested basis.

4. The parties may take actions or make agreements which have unforeseen and/or unintended consequences since they are unaware of applicable legal considerations.

Potential advantages of the Pro Se model might include:

1. Very low cost.

2. The assurance that non-parties will not create or worsen conflict.
 

What is Mediation?

In mediation, the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues. The mediator may or may not be a lawyer. The mediator does not represent either party and cannot provide legal advice. Mediation may occur with parties who have hired attorneys or parties who are not represented by attorneys. The parties communicate with one another directly in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. If the parties proceed in mediation without attorneys, they must still prepare all the required forms for the court, though a mediator may help prepare forms for the parties.

Possible disadvantages of mediation might include:

1. If the parties do not also retain an attorney to represent them, in addition to retaining the mediator, they will have to proceed without the benefit of legal advice and assistance, since the mediator cannot provide legal advice to either.

2. If mediation proceeds without one or both of the parties having the advice and assistance of an attorney, and the parties seek that advice after an agreement has been reached in mediation and one of the parties finds it necessary to withdraw the agreement after learning their legal rights, the resulting reaction will likely make further productive dialogue much more difficult.

3. If the parties do retain attorneys in addition to the mediator, the expense of three professionals will be incurred wherein they are not working together in an integrated process, reducing the potential cost savings associated with the model.

4. One or both parties might not be able to accurately understand, remember and/or apply legal advice given by an attorney at a mediation session days or weeks later, making a process involving a separation of legal advice and negotiation inefficient or impractical.

5. One or both parties may require direct advocacy or assistance in order to feel comfortable actively participating in a process of negotiation. Since a mediator must strive to maintain a completely neutral stance and cannot align himself or herself with either party, there is very limited help which can be provided to either party to assist them in participating effectively in the negotiation.

6. The parties may be unable to accomplish what is required to commence or conclude or carry out the terms of the agreement reached in their case, since they lack the skills knowledge and resources needed and the mediator cannot provide the legal advice necessary.

Potential advantages of mediation might include:

1. A non-adversarial focus.

2. Lower cost than litigation.

3. The ability to keep the process private.


What is Collaborative Family Law?

In collaborative family law, each party hires a specially trained and certified collaborative attorney, and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues. The parties and attorneys communicate and negotiate directly with one another in structured four-way settlement meetings. Binding commitments are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations, and to refrain from the threat or use of litigation. The parties agree that they will not go to court and if anyone wants to do so, both collaborative attorneys would be disqualified and must withdraw, and both parties would need to retain new attorneys to represent them if they wish to be represented in court. If required, experts are brought into the process as neutrals who are jointly retained by the parties. In addition, collaborative divorce may involve a team approach; possible team members include financial advisors and mental health professionals who can serve as coaches to help the parties effectively participate the process, and financial specialists to assist with financial issues. In the event that these other professionals are brought into the process, they would contribute the assistance which their training and experience make them uniquely qualified to provide. In the collaborative process, the parties hire attorneys as legal advisors and settlement specialists. This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. In collaborative family law, the parties are directly involved in the process and retain control over the outcome. Collaborative family law is a newer dispute resolution method than other options, but experience indicates that collaborative divorce often leads to greater satisfaction for the parties to the dispute, and a reduced likelihood to return to litigate future issues in court.

Possible disadvantages of Collaborative Family Law might include:

1. The possibility that one of the parties will attempt to use the process to delay resolution of the dispute, avoid disclosing relevant information, seek to disqualify the other party’s first choice regarding legal representation, or otherwise act in bad faith.

2. In the event that, despite the best efforts of both parties, the process is unsuccessful, there might be increased cost to both parties since they would need to retain new attorneys for litigation.

Potential advantages of Collaborative Family Law might include:

1. Collaborative family law is designed to minimize hostility and negative conflict, and to instead refocus the parties on constructive, mutually satisfactory methods of arriving at outcomes. This is a significant benefit to the parties’ children, since research has shown that conflict and hostility between parents, an almost inevitable consequence of adversarial litigation, is significantly damaging to children.

2. Collaborative family law as a process significantly increases the likelihood that parties to a family law dispute can resolve the dispute while preserving a positive relationship. This can be quite valuable when there will be a need to maintain a co-parenting relationship with the other party and/or when preserving as positive a relationship as possible is important based on a party’s values.

3. Assurance that the attorneys involved have specialized training in family law dispute resolution and will not create or worsen conflict.

4. The unique ability to incorporate other professionals into the process, such as mental health professionals and financial specialists, who can contribute insight and assistance which their training and experience make them uniquely suited to provide.

5. The ability to maintain control and direct involvement in the process, and the related assurance that neither party has to face the risk or fear of an unknown, imposed decision.

6. The ability to keep the matters involved in the case comparatively much more private than litigation.

7. Collaborative family law is extremely flexible. It allows the parties, working together with their attorneys, to explore creative solutions to meet their circumstances.

8. The potential for cost savings. While not necessarily a “low cost” alternative, parties using collaborative family law have the assurance that they have direct control over the resources used in conjunction with the process, and that by definition, all such resources are being expended directly toward resolving issues.


If you have questions about any of the foregoing information, or would benefit by further discussing the dispute resolution options available and which one is right for you, contact one of our collaborative professionals members.