What Is Collaborative Law And How Does It Work?
Collaborative law is a way of resolving disputes. It’s discussed here in the context of family law. Collaborative law is an alternative to entering into contested divorce proceeding in Florida.
Firstly, all parties must enter an agreement to participate in the collaborative law process. This may occur before a case is actually filed in the court system. In this case, nothing would be filed in the court system until after the process is complete.
Alternately, the case could go into the collaborative process after the case is opened in the court system. In this case, the parties must reach an agreement for the case to be abated and not litigated in the court system until the collaborative process is finished.
Essentially, the idea is that the husband and wife should each have an attorney. Often times, the parties will assemble a collaborative team, which includes mental health professionals, CPAs, and/or financial planners.
This should be a non-adversarial process. All of the parties, meaning the husband and wife, are meant to disclose all information. Several meetings that involve many professionals occur throughout the process. They attempt to work out a plan that works for the entire family and considers all of the issues that may involve children or finances.
Furthermore, during this collaborative process, all involved professionals work to resolve the case. Therefore, if the case isn’t resolved during the collaborative process, everyone withdraws.
Generally, this person who withdraws is a lawyer who represented a client during the collaborative process. If the process went wrong and the case went unresolved, then the lawyer must withdraw. Another lawyer steps into his place for the litigation.
How Is Collaborative Law Different From Mediation?
Typically in collaborative law, a group takes the place of the mediator. Sometimes a mediator enters the process if people are stuck on a certain issue, but the process is meant not to be as adversarial as mediation.
Mediation occurs when someone enters the process when the parties are still polar opposites. Collaboration is far more open, allowing many people to work together as a team to resolve the issues. Other professionals might enter their input, as well, to resolve many divorce issues.
What Could Be Addressed During the Process?
The usual addressed issues are the ones that would be addressed in a normal divorce. They would discuss issues involving the children, like time-sharing, what the children’s schedule is, when one parent would have the children, when the other parent would have the children and how the holidays would be divided. They would further note where the children would attend school after the divorce.
Sometimes, child medical issues and treatment decisions are discussed, as well. They would discuss daycare providers if the children were young. Health insurance, extracurricular activities, and issues regarding how they would participate in those activities would be discussed. For example: How will the children arrive to these activities, what will be done for them and how will these activities be paid for?
The assets and the financial issues must be understood, as well. This involves how the property will be divided, what will be done with the real estate, what should be done if a business is involved and how everything should be divided. They further discuss how to value the business’ worth and who is entitled to what.
Support obligations must be created in terms of either alimony or child support. They must divide everything up. All issues fall into two broad categories: children and miscellaneous categories like assets, financial issues and support issues.
Does Collaborative Law Always Work?
It probably doesn’t work all of the time. However, it does work a lot of the time. When it does work, the parties have a better solution.
One overarching idea behind collaborative law is something called “Interest Based Negotiation.” This means that during the negotiation process, the focus is on the party’s interests in the case, this is in contrast to traditional negotiation which is what we would call “Position Based.”
The classic example of this is what is called the one lemon scenario. In this scenario, we have two parties and one lemon. Both parties want the lemon of course. In a position-based scenario, each party would take the “position” that he/she should have the lemon. This appears on its surface to be an impossible situation. However, if we go deeper, and look at the “interests” of the parties we discover that one party only wants the juice to make lemonade, and the other only wants the peel or zest for baking. Therefore, by looking at interests as opposed to positions, the needs of both parties are met.
An example of this in relation to divorces is that both parties have an “interest” in making sure the children are happy and taken care of. They may have different opinions as to how to achieve this, but focusing on this “interest” first is certainly the way to go.
Collaborative law is also a team approach. Many people are involved, working together, thus teaching the parties better communication skills during the process. This communication is something the two parties can utilize in the coming years.
The parties have an interest in creating this agreement together. As such, collaborative law works a lot of the time.
When it does work, parties have a more workable solution. They are less likely to go back to court. Often, during the court process, there are always losers, because nobody wins after the litigation process. In the courts, one party might get more of what he’s looking for, and the other party might get less of what he’s looking for. Nobody wins, and animosity grows. Oftentimes, these people wind up back in the courtroom again in a few years.
Collaborative law creates a system for the parties to communicate with each other and deal with each other after the divorce is finalized.
When Is It Better To Participate In Collaborative Law, And When Is It Better To Go To Trial?
The only time it’s better to go to trial is when the case isn’t appropriate for collaborative law. Essentially, in this case, the parties don’t agree to collaborative law. Someone cannot be forced to participate in the collaborative process.
Usually, the choice is based upon the level of animosity of the parties. Sometimes the parties are too at-odds with each other to make it work. This is something we would have to judge prior to initiating the process.
Usually, if somebody is too angry to handle the case collaboratively, he won’t agree to it, anyway.
If the parties do agree to participate in this process, they have more of an interest in preserving the relationship than battling in court and getting exactly what they want.
Wanting to preserve the relationship usually occurs when children are involved. The parties want to preserve the relationship, even without marriage, to continue the relationship with each other. The parties that value their ongoing relationship are aware of their relationship’s importance for their children.
For more information on collaborative law, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling our Tavares office at 352-742-7777 today or contact us online.