The collaborative approach to resolving legal disputes is a relatively new process, developing since the early 1990's. However, it is a rapidly growing movement gaining worldwide recognition as an attractive alternative to litigation.
In a conventional divorce, one spouse sues the other for dissolution of the marriage. While the eventual result is typically settlement, this often is achieved only with the involvement of the court. Unfortunately, as spouses go through the divorce experience, they frequently view each other as adversaries and their divorce as a series of battles which must be won or lost — without any middle ground. The ensuing conflicts can take an immense toll on the emotions of all involved. When there are children, this will be especially difficult for them.
In contrast, collaborative practice is a non-adversarial approach to divorce. After full and voluntary disclosure of information, the spouses negotiate in good faith and with the help and guidance of their attorneys, to achieve a mutually-agreed upon settlement outside of court proceedings. While divorce is never easy, the cooperation of the parties and attorneys can greatly ease the emotional strain caused by the breakup of the relationship, and help protect the well-being of the children.
When a couple decides to pursue a collaborative divorce, they each hire lawyers specially trained in what is known as collaborative practice. Because both attorneys and the parties are dedicated to settlement, they can approach the divorce as a series of problems to be solved rather than a contest to be won. Mutual problem-solving leads to the final divorce agreement. The spouses and their lawyers pledge in writing not to go to court, and should the divorce "fall out" of collaborative and become litigated, the attorneys must withdraw from representation.
Collaborative practice offers the advantage of having the attorneys present at the meetings between the parties. This may be particularly helpful in circumstances where there is an imbalance in power of the parties or in circumstances in which one of the parties is much more financially sophisticated. Additionally, the presence of both attorneys may be useful calming emotionally charged situations.
Additional experts, such as mental health specialists (divorce coaches), child specialists, and financial specialists, may join the process when needed. Having access to the specialized skills of these professionals as part of the collaborative team often results in a more effective and efficient outcome.
"Resolving disputes respectfully" is a phrase often connected with collaborative practice. The process is guided by a very important principle — respect. Collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive. The goal is to build a settlement based on the true needs of the parties, and not to perpetuate disagreement.
What does this process offer the divorcing spouses? In a word — control. The collaborative approach provides control over privacy, control over the process of resolving the dispute, control over the cost, and control over the outcome. Because collaborative practice does not use court hearings, less information about the parties' circumstances may be needed in the public record. When compared to litigation, collaborative practice has been shown to be both cost efficient and timely, and perhaps more importantly, agreements tend to be kept because of the involvement of the spouses in developing the outcome. Even if needs change over time, the former spouses are often more effective in making adjustments because of exposure to communication and negotiation skills utilized during the collaborative process.
