Collaborative
family law is a non-traditional type of dispute resolution that focuses on the
unification of the parties in an efficient and therapeutic manner. Unlike the traditional litigation process,
collaborative law negotiations occur outside the courtroom and commit to
cooperation and honesty. This
commitment to transparent communication encourages parties to work together
toward a mutually agreeable settlement.
The traditional
collaborative law model consists of an
attorney for each client, who agree to work together with the parties
toward a single goal of reaching a fair settlement. Furthermore, each attorney can consult
experts, such as a child or financial
specialist, to further advance the transparency of the negotiations.
Unlike mediation,
each client’s lawyer is present during settlement and can provide legal advice
during face to face negotiations. The
term “fair” is used because both parties must agree before a settlement is
reached. Consequently, parties are more satisfied with their decisions because
they are in control and are not solely relying on a judge’s interpretation of
their family’s dispute.
Secondly, unlike
most litigation, collaborative law takes into account the present and future
needs of the clients. Here, clients can
schedule meetings without waiting for court dates, which often can require long
waits before hearings. This delay in
litigation can create new issues for the
litigants.
Moreover, unlike
other settlements, which can occur under the threat of litigation, collaborative law eliminates the
adversarial element by requiring both attorneys to withdraw from representation
if an agreement is not reached. This encourages each party to disclose privileged
information, which cannot be used during any necessary litigation, in a setting which
preserves the privacy of each party. This privacy element is often key to
restoring and keeping communications open in family disputes. Many attorneys, however, believe this
requirement to withdraw is a barrier to
the widespread practice of collaborative law.
Withdrawal of representation and requiring parties to hire new attorneys
causes inflated legal costs and eliminates the lawyers’ familiarity with the case.
In summary, one
must remember that collaborative law is only one method to resolve family legal
disputes and may not be the correct approach for everyone. This is especially
true in cases involving domestic violence, as these often require a resolution by a judicial officer.
Posts
Having to hire new attorneys if an agreement cannot be reached likely causes increased attorney costs. I would be interested to see statistics that show the amount of collaborative law cases, as well as the average net worth of clients who enter into a collaborative law scenario.
ReplyDeleteDavid, I agree with your statement about the increased attorney costs. However, allowing many professionals (legal, mental health, and financial) to gather together in one setting to solve a solution is more efficient and could probably decrease the overall cost compared to litigation.
ReplyDelete***solve a problem ****
ReplyDeleteCollaborative law offers a unique way to solve family disputes and it can be extremely beneficial for certain types of families. As you mention, collaborative law can offer parties better protections of their rights than mediation because both parties are represented through the whole process. While the process is all about finding a solution that works for the parties, having representation can ensure that no party is being trambled on and that a solution is fair. However, there are a number of downsides when it comes to collaborative law. As David points out, having to dismiss your attorneys if the process does not work wastes not only money, but also time. A party has to completely start over with the litigation process. Even if the process does work for the parties, collaborative law can easily cost a client about $20,000. The process takes place over a period of months and having an attorney through that entire time costs money. This process can be even more expensive if the interdisciplinary team approach is used and other professionals are included in the collaborative process. I believe that the process has the potential to work, but as it stands now, I do not believe it is really a solution for anyone except those in the upper class. Hopefully as the process becomes more popular, changes can be made to make the process more affordable, so people from all walks of life can reap the benefits.
ReplyDeleteI think that, in a vacuum, collaborative law sounds great. Cooperation, collaboration, and open communication. What could get better than that? And I'm sure that for some individuals, it does work great.
ReplyDeleteHowever, what is especially worrisome to me is the presumption that everybody is being honest and collaborative law's oversight regarding unequal bargaining power. In a situation where one party is intimidated by the other party, how are we to assume that the agreed outcome is actually completely willful? The traditional approach with attorneys as representation allows parties who may be victim to intimidation or manipulation to protect themselves through the power of attorney.
I think that collaborative law works in situations where the parties would not have ended up in court anyway. However, in adversarial and complex situation, I think the last resort of court is needed to serve as a "check" for each of the parties. If they won't act fairly, then the judge will. With that notion removed, a less powerful party may fold to the other party's requests for the wrong reasons.