What is Collaborative Law?
Collaborative Law is similar to Mediation. The goal is for the parties to reach an agreement without having to enter the traditional adversarial court system. The difference is that in collaborative law, each party retains an attorney who will participate in all meetings and work collaboratively along with the other attorney to assist the parties in reaching an agreement. In Massachusetts, typically one neutral coach is used in a Collaborative Law divorce case. The role of the coach is to help keep the process moving forward and focus everyone on the agenda items at hand.
The couple and their collaboratively trained attorneys commit to share necessary information and work in a results-focused environment that is unlike those found in traditional litigation arenas.
At times other collaboratively trained professionals might be brought in to assist the process. These may include financial advisors or business valuation experts. Collaborative Law is extremely effective when the parties wish to resolve their dispute in a way that is far more confidential and efficient than litigation in an open courtroom. It is also beneficial where continued relationships among the parties are either required or valuable to the parties.
Finally, where the parties have agreed to work together towards resolution, considerable financial savings over traditional litigation can be realized. For Collaborative Law to be most effective, it is helpful if the collaborative attorneys are involved as early in the dispute as possible.
Collaborative Law focuses on the resolution of the conflict and not the conflict itself. A couple in a divorce might work collaboratively to prepare a parenting plan that addresses almost all eventualities (think family vacations, birthday parties, etc.) without dwelling on the past.
Control of the Process
Mandatory deadlines, complex guidelines, and broad judicial discretion in matters of property division, spousal support and physical and legal custody can provide heightened levels of stress for a couple going through one of the most traumatic processes in their lives. When a couple decides to use mediation or Collaborative Law to resolve the issues surrounding their divorce, some of the pressure is reduced because the individuals are participating in a process that doesn’t have to meet arbitrary deadlines. The focus is on finding the best options for the future for the parties.
At a time when everything else seems out of control, couples may want to consider an option that allows them a greater sense of control over the outcome. Many couples prefer to be directly involved in the crafting of their separation agreement rather than have the agreement negotiated by their attorneys or solely determined by a judge. This process can be empowering and result in a better agreement for both.
Finally, nothing is more important to a loving parent than the legal and physical custody of their child. Providing an opportunity to fully explore the best interests of the child in the opinion of the child’s parents is paramount. Mediation and the Collaborative Law process often provide the best environments in which these decisions can be made.
The collaborative process is an open and honest one, but it also affords confidentiality in the exchange of information. Prior indiscretions, disagreements or spousal shortcomings will not be aired in public, so the negative impact on other family members, especially children, will be minimized if not eliminated. Meetings are typically held in private offices where the parties have an opportunity to speak their mind and to listen to others involved in a much more private and comfortable setting. In the rare occasion where a couple is not able to resolve all their differences through the collaborative law process, discussions that have taken place in meetings remain confidential. Under the terms of the process agreement, they will not be disclosed in a subsequent process.
There are countless dedicated and diligent judges, clerks and staff members working in the courts throughout Massachusetts. However, with the Trial Court facing another significant cut in the current year’s budget, there is only so much that can be done.
Overworked and understaffed courts have been more common in the last few years, and one can often find news articles detailing the loss of court personnel. Frustration abounds when clients and attorneys spend time waiting for their case to be called at court. These realities of the challenges facing the court system provide another reason for clients to consider alternatives.
By choosing a process like Colllaborative Process, couples can avail themselves of the benefit of efficient scheduling of meetings and the use of independent and neutral professionals. At the Law Office of Martin Murphy, LLC, meetings can be scheduled at the client’s convenience, perhaps in the early morning or evening. Not only is money saved within the process itself, but also less time is taken away from work and daily commitments. Neutral professionals save the couple time and money by reducing the need for each person to obtain his or her own professionals who will require more meetings and hence more time and more money, thus costing more in future resources.
Collaborative Professionals are trained to assist parties to better understand the underlying causes of their needs, and that can often help them move through a transition in a manner that keeps them from getting stuck. Collaborative Process focuses on solutions, not conflicts.
A couple that is considering divorce often has a grave and understandable concern over the cost associated with the process. By choosing a process that allows for efficient scheduling of meetings and the use of independent and neutral professionals, the couple will be best able to preserve their resources and provide for their families in the future.
In the movies and on legal television dramas there is a propensity for one party in a divorce to “take him for all he is worth,” but in actuality the pursuit of a financial windfall will fall tremendously short of the target since a standard of fairness will be applied by the court before approving any agreement. It will also result in more money being spent- money that would have been better spent in the future. Choosing a process like Collaborative Law provides the couple an opportunity to save tremendous resources when compared to traditionally litigated divorce.
When is Collaborative Law the Right Choice?
Collaborative Law can work well in settling the vast majority of disputes. It does require that all those involved come to the process voluntarily and with a sincere intention to reach resolution. Collaborative Law may be more challenging when one person has something significant to hide and is not willing to be transparent. It can also be challenging when there is a serious imbalance of power or a very high level of conflict. When some of these challenges are present, other neutral professionals such as a financial neutral may be able to assist in the process and help reset the power imbalance or provide communication strategies to reduce the conflict. Collaborative Law succeeds when the parties in a case want to come to an agreement and when they prefer to do so in a confidential, cost effective process that provides them with a higher level of control over the outcome.
How does Collaborative Law work?
The first step in deciding whether or not mediation is right for you is to make an appointment with our office for a free “Process Presentation,” where we will outline the entire process for you and explain how your particular case is expected to be handled. All of your other process options will be discussed to enable you to make the best decision for yourself and your family. Contact us today to schedule your free Process Presentation.
Once you have selected a collaborative process for your divorce you and your attorney can determine the best way to invite your spouse to the process. If you are comfortable talking with your spouse about this process option you can do so directly. As an alternative, your attorney can send a letter to your spouse inviting them to explore the collaborative process. In order to participate in the collaborative process your spouse will have to select a collaboratively trained attorney. Educational materials can be provided for either option and there are a variety of websites that can provide both you and your spouse tremendous resources.
One of the most unique qualities of the collaborative law process is the attorney disqualification clause. This clause will be included in the collaborative process agreement you will sign with your attorneys. It states that if you are unable to resolve all of your issues, your attorney will be disqualified from representing you in a subsequent process such as litigation. This is also true of your spouse’s attorney. The benefit of this clause is that the entire professional team is focused on helping the couple reach a resolution on all of their issues.
Selection of a Neutral Coach
Once the couple has each selected their collaboratively trained attorney they need to select a collaborative coach. The attorneys can assist their clients with the selection of the collaborative coach and provide resources to help make that selection easier. Once the coach is selected the date will be chosen for the first collaborative team meeting.
At the first team meeting, the collaborative process agreement will be read and signed by all of the parties. Communication protocols and goals for the process will be discussed and will help set the basis of future agendas. A typical family collaborative case will take between four and six sessions. Each session is attended by the couple, their attorneys, and the collaborative coach.
In between meetings a couple will be assigned homework to complete for the next session. This homework might include valuing particular assets, considering parenting plan options, or researching benefits available through your Human Resources Department. All of this information gathered will be shared with the other party in this transparent process.
Occasionally couples will get stuck on a particular issue and the assistance of a trained collaborative neutral can be very helpful. For example, a financial neutral may help the parties consider tax implications of decisions that they are making during the divorce process. A child specialist neutral may be able to help the parents create other options for their children that may serve their best interests in the future. One of the benefits of these neutrals is that they work for both parties and are not there to advocate for one or the other but to simply provide the best answers possible. Once their work is completed they remove themselves from the collaborative process and are only brought back in at the invitation of the couple. Neutrals are a very cost effective and efficient way for the couple to receive resources.
Filing in court
At the end of the collaborative process the couple will meet one final time to review their separation agreement and the other documents that will need to be filed with the court. Once that is completed a joint petition for divorce will be filed with the court and a hearing date will be scheduled.