What is collaborative practice?
The collaborative law movement actually started in the Twin Cities metropolitan area of Minnesota and spread throughout the rest of the United States, Canada, Australia and Europe. In collaborative law, which is now called “collaborative practice”, attorneys and their clients work together in non-adversarial ways to structure a settlement.
They begin by signing a Participation Agreement. Signing the agreement indicates their commitment to resolve all differences and issues related to the separation or divorce outside of court. The Agreement is like a contract and requires full disclosure of all financial information by both spouses.
Why should I consider collaborative law?
The collaborative process is designed to remove as much fear and anxiety as possible from decision-making in a divorce. Collaborative practice recognizes that the experience of ending a marriage or relationship is hard enough. Professionals should not make the experience worse by adding to the conflict or by causing either partner to feel more threatened or vulnerable than they do already.
Collaborative practice ensures that each marriage partner has accurate information, sound legal advice, solid support in problem-solving and decision-making, and sincere assistance in laying the groundwork for respectful working relationships after the process is over.
When should I talk with a collaborative lawyer?
Any person approaching divorce should talk with a collaborative lawyer as early as possible to review all the options that may be available in his or her situation. The earlier this is done, the more chance there is for the other spouse to agree to see settlement as the aim. Collaborative lawyers can serve as coaches to guide you through that process or through alternatives like mediation. No matter what settlement approach you choose, a collaborative lawyer can be a valuable ally.
How is collaborative law different from traditional legal divorce proceedings?
A contested divorce proceeding, in the eyes of the law, is a civil lawsuit much like other civil lawsuits. Traditionally, one party serves the other with legal documents that ask for everything a court could possibly award them. The other party responds with a counter-suit, asking for the same awards from the court. Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years.
Attorneys, for the most part, have been trained to conduct this sort of conflict and have resisted the difficult work of meeting with couples to do conflict resolution that focuses on future success for the entire family. Negotiation in conventional divorce is usually done through the parties’ respective attorneys – a process that is often lengthy, bitter, and filled with “win-lose” proposals. Typically, the proposals do not solve the problems, so the issues must be submitted to a judicial officer for decision.
Collaborative practice brings couples, their attorneys and other professionals together before either party is served with divorce papers. The court is not involved while the parties structure a mutually acceptable written resolution of all issues to submit to the court as a final decree.
Do we ever “go to Court?”
If the parties resolve their issues through collaborative practice, a settlement document, produced in the form of a final decree, is given to the court to enter as its “judgment.” Because both spouses are represented by legal counsel, the decree can be approved by a judge in Minnesota without a court hearing.
What if my spouse has already filed papers with the Court – can we still choose collaborative law?
Absolutely!! Attorneys for the couple can ask the court to have the case placed on “inactive” status while collaborative process continues.
How do you go about working toward a settlement?
Participants in collaborative practice communicate through joint meetings, telephone conference calls, and email transmissions. In joint meetings, husband, wife, attorneys, and any other collaborative professionals working on the case sit around a table together, discuss the issues, and seek ways to reach agreement. The issues, concerns and needs of all family members are put on the table for full consideration by each member of the team.
How do you get the information you need to proceed?
We determine what the parties have in the way of assets and income using a business-like “trust but verify” approach. Rather than engaging in expensive legal “discovery” procedures which take a great deal of attorney time, parties commit in the Participation Agreement to disclose information voluntarily and to verify it with documentation and tax returns.
What happens if one side or the other is dishonest in some way, or misuses the process to take advantage of the other party?
Collaborative practice is designed to guard against dishonesty. If there are questions about whether information being provided is accurate, collaborative attorneys can request source documents from an employer or banking institution. Most couples realize that it is in their best interests to remain honest and allow the process to work.
How do you keep everyone from fighting?
Collaborative professionals are trained to help clients deal with their emotions in joint meetings and conference calls. They understand how to help clients express authentic hopes and needs effectively. They ask questions that keep the conversation focused on mutually acceptable, workable outcomes.
Collaborative professionals also model appropriate behavior. Instead of confronting others in the room, they establish an atmosphere of mutual respect and ensure that everyone present sustains that respect throughout the process.
And that works?
In most cases, it works beautifully. When problems arise, collaborative practice attorneys help divorcing couples remain committed to finding workable solutions. The very act of meeting together to work through problems and concerns sets the stage for giving thoughtful consideration to everyone’s needs. Remarkably, this atmosphere helps to create broader, more detailed solutions and more complete settlement agreements.
What is “Collaborative Team Practice”?
Collaborative Team Practice is a new, multi-disciplinary approach to helping families make decisions related to separation or divorce. A multi-disciplinary approach has been used for some time in medicine and other professions, but is just now gaining popularity in the legal profession.
In Collaborative Team Practice, the couple has access to a team of professionals, each specializing in a different field of expertise. The collaborative team model uses licensed mental health professionals as coaches for the marriage partners, child psychologists to give the children a voice in the process, and a financial specialist (such as a certified financial practitioner or certified divorce financial analyst) as a neutral to help advise the couple on the impact of their financial decisions. All the professionals involved – the attorneys, the mental health professionals, and the financial planners, have special training to help them take a holistic view of the family’s needs.
What happens if we hit an obstacle to settlement?
If the parties cannot reach a settlement, the first step is to use outside professionals as neutrals. For example, if the needs of the children or the complex valuation of a business or other asset are in question, outside professionals may be brought in to help resolve the difficult issues. Sometimes, an outside resource can act as a facilitator (or mediator) to help guide discussions.
What is the difference between collaborative law and mediation?
In mediation, one “neutral” professional helps disputing parties try to reach an agreement. However, the mediator cannot give legal advice to either marriage partner.
Mediators have been active in the collaborative practice movement from the beginning. In fact, most collaborative attorneys in Minnesota are trained mediators. Some members of the Collaborative Law Institute of Minnesota practice mostly mediation, and can be found in the professional profile pages of this website. These mediators recommend collaborative attorneys to their clients, to help their clients find good legal advice. The collaborative attorneys then work in a supportive way, together with the mediator, to help a couple reach agreements in mediation. After the mediation process is completed, the collaborative attorneys then provide whatever services are necessary to help the couple obtain a formal decree of divorce from the court system, based upon the agreements reached in mediation.
Many mediators outside of the collaborative practice model do not work closely with attorneys and may choose not to recommend that the parties seek ongoing professional advice about their legal rights and settlement options. Their clients may not have access to immediate legal advice as they make decisions in that process.
Collaborative practitioners work together to protect the rights of each party while keeping the same commitment to settlement. Each side has professional legal advice and advocacy available at all times during the process. When particularly difficult issues arise, attorneys help keep the process focused on finding a mutually agreeable resolution rather than “winning” or “losing” the point.
Can we trust that our attorneys won’t just take our case to court eventually?
Attorneys who have been involved in the collaborative process with a couple must withdraw if the collaborative process is ended. By agreeing to withdraw, attorneys help the couple focus on decisions that need to be made, not the conflict involved in making them. The marriage partners know that neither attorney is building a case against them while they are going through one of the toughest times of their lives.
Aren’t we duplicating services to have non-trial lawyers if we might need trial lawyers as well?
Let’s put this in context. Lawyers, by training and instinct, are trial and court-oriented. Though they may try to settle cases through negotiation, they practice mostly litigation and tend to “drift” into court proceedings in which time, costs, and stress escalate. This is why the collaborative law movement began.
Collaborative lawyers, by definition, cannot resort to adversarial court proceedings. They concentrate on practicing conflict resolution and settlement.
If parties need to retain a trial specialist even after working with collaborative lawyers, they benefit from engaging with the best of both approaches.
How does the practice of collaborative law affect attorney’s fees?
In conventional representation, attorneys spend much of their time preparing documents which are only for the court’s use or to impress a judge, producing expenses that don’t have direct value to the client. The collaborative law process has advantages that tend to reduce attorney fees.
For example, because it often takes less support staff and time away from the office to represent clients in collaborative practice, many attorneys with a collaborative practice can pass the savings on to their clients by offering reduced rates for representation.
The biggest savings result from avoiding the most costly parts of litigation (e.g. hearings, multiple expert witnesses and depositions.) Attorney time, in the collaborative process, is spent in direct service to the client.
What type of training is required to become a Collaborative Law Institute of Minnesota member?
Collaborative Practice members engage in a life-long learning process that promotes an essential shift of mindset. Members participate in ongoing training workshops, training from international experts, and mentoring opportunities with experienced collaborative professionals.
