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Frequently
Asked Questions (FAQ's) |
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| Q
] What is Collaborative Family Law? |
| A ] Collaborative Family
Law is a problem-solving process that gives divorcing parties
and their lawyers a way to end a marriage and restructure
families without the stress, delay, and expense of litigation.
Collaborative family law is founded on three principles:
• a pledge not to litigate
disputes in court
• an honest, voluntary, prompt,
and good-faith exchange of relevant information without
formal discovery
• a commitment to strive for
solutions that take into account the highest priorities
of both parties and their children.
Although the lawyers share a commitment to collaborative law
principles, each lawyer has a professional duty to represent
his or her own client diligently, and is not the attorney for
the other party. |
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| Q
] How does the Collaborative Process work? |
A ] When a couple decides to pursue a collaborative divorce without going to court, they each hire lawyers trained in collaborative law. Collaborative lawyers and their clients sit together in face-to-face meetings to identify and address issues in need of resolution. The lawyers focus the clients on problem-solving and making plans for the future, rather than on casting blame or making accusations for what may have happened in the past.
In Collaborative Law, the parties and their lawyers all agree that should the negotiations fall apart and the parties wish to proceed to court - they will do so with new lawyers. Additionally, each collaborative lawyer is required to withdraw upon becoming aware that his or her client is being less than fully honest, or is participating in the process in bad faith. Since all meetings with the collaborative team are confidential, discussions, disclosures or any concessions that may have been made during the four-way conferences cannot be used against either party in any subsequent court proceeding.
Because ending a marriage has emotional and economic consequences, as well as legal consequences, the parties may have trouble communicating and making decisions without the help of other professionals in addition to their lawyers. That is why collaborative lawyers often rely on an interdisciplinary team approach. This means that the parties may jointly hire personal coaches (generally a mental health professional), child specialists, and financial experts to assist in gathering information and problem-solving. The professionals working as part of the collaborative team share the belief that is in the parties and their families best interests to avoid litigation, and to settle differences fairly, honestly, and efficiently.
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| Q
] Is Collaborative Law
right for me and my spouse? |
A ] The collaborative process is for couples who want a respectful end to their marriage for the sake of all family members. Ultimately, you must be the judge of the other person's honesty and integrity, as well as be responsible for your own. If the following things are important to you, Collaborative Law could be the best process for you.
- You seek a respectful, creative and individual process for ending your marriage.
- You want to retain control over the decisions that will effect your lives during and after your divorce.
- You recognize the potential importance of future relationships even after divorce.
- You believe it is important to protect children from the harm that parental conflict can inflict.
- You place a high value on personal responsibility for managing conflict with integrity.
The Collaborative Family Law Center is unable to provide services if you are unable to locate your spouse or if you are unable or unwilling to sit at a table with your spouse to discuss difficult issues or in cases involving domestic violence or child abuse.
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| Q
] How do I know if it is safe for me to work in the Collaborative
Practice? |
A ] In the collaborative process, both clients must agree to communicate in a respectful manner. However, oftentimes there are issues of power imbalance or even abuse between people seeking to end their marriage or partnership. While personal coaches can be brought in to help couples struggling to communicate effectively, the collaborative process cannot work when even one of the parties is in fear of or under the control of another. That is why the Collaborative Family Law Center will not refer cases involving domestic violence to collaborative law.
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| Q
] How expensive is collaborative law? |
| A ] Collaborative
lawyers generally charge by the hour as do conventional family
lawyers. Rates vary from locale to locale and according to
the experience of the lawyer. No one can predict exactly
what you will pay for this kind of representation because
every case is different. Your issues may be simple or complex;
you and your partner may have already reached agreement on
most, or none, of your issues. You may be very precise
or very casual in your approach to problems. You
and your partner may be at very different emotional stages
in coming to terms with separating from one another. While
the cost of your own fees cannot be predicted accurately,
a rule of thumb is that collaborative law representation
will cost from one tenth to one twentieth as much as being
represented conventionally by a lawyer who takes issues in
your case to court.
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| Q
] How does the cost of
Collaborative Law compare with the cost of litigation? |
| A ] Litigation is often the most
expensive way of resolving a dispute. It is common
for litigated divorces to begin with a motion for temporary
support. The result is exactly that—a temporary
order, not any final resolution of any issues. It is
not uncommon for a single temporary support motion to cost
as much or more in lawyers’ fees and costs as it costs
for an entire collaborative law representation. |
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| Q
] Is Collaborative Practice
a faster way to get a divorce? |
| A ] Individual circumstances
determine how quickly any divorce process proceeds. However,
Collaborative Practice can be a more direct and efficient
form of divorce. From the start, it focuses on problem solving,
not blaming or endlessly airing grievances. Full disclosure
and open communications help to assure that all issues are
discussed in a timely manner. Finally, because settlement
is reached out of court, there is no waiting for the multiple
court appointments that may be necessary with conventional
divorce. |
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| Q
] How is the Collaborative
Law different from settlement negotiations between divorce
attorneys? |
| A ]
• In
Collaborative Law, all participate in an open, honest exchange
of information. Neither party takes advantage of the miscalculations
or mistakes of the others, but instead identifies and corrects
them.
• In Collaborative Law, both parties insulate their children from their
disputes and, should custody be an issue, they avoid the professional custody
evaluation process.
• Both parties in Collaborative Law use joint accountants, mental health
consultants, appraisers, and other consultants, instead of adversarial experts.
• In Collaborative Law, a respectful, creative effort to meet the legitimate
needs of both spouses replaces tactical bargaining backed by threats of litigation.
• In Collaborative Law, lawyers must guide the process to settlement or
withdraw from further participation, unlike adversarial lawyers, who remain
involved whether the case settles or is tried. Because of the withdrawal
possibility, the interests of attorneys and their clients are aligned in favor
of settlement.
• In Collaborative Law, there is parity of payment to each lawyer so that
neither party’s representation is disadvantaged vis-à-vis the other
by lack of funds, a frequent problem in adversarial litigation.
Most conventional family law cases settle figuratively, if not literally, “on
the courthouse steps.” By that time, a great deal of money has been
spent, and a great deal of emotional damage can have been caused. The settlements
are reached under conditions of considerable tension and anxiety, and both “buyer’s
remorse” and “seller’s remorse” are common. Moreover,
the settlements are reached in the shadow of trial, and are generally shaped
largely by what the lawyers believe the judge in the case is likely to do. Nothing
could be more different from what happens in a typical collaborative law settlement. The
process is geared from day one to make it possible for creative, respectful collective
problem solving to happen. It is quicker, less costly, more creative, more
individualized, less stressful, and overall more satisfying in its results than
what occurs in most conventional settlement negotiations. |
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| Q
] Are my spouse and I
required to give financial information to each other in Collaborative
Practice? |
| A ] Yes. Both parties will be
required to fill out a financial disclosure form and to provide
statements to confirm amounts in accounts. Although
no one can give you an absolute guarantee that every asset
or every bit of income will be disclosed, in the collaborative
process both parties sign a binding agreement to disclose
all documents and information that relate to the issues – early,
fully, and voluntarily. If a collaborative lawyer learns
that the client has withheld or misrepresented information
that should have been disclosed, the participation agreement
requires the lawyer to withdraw if the client refuses to
authorize the correction. |
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| Q
] What happens if one side or the other hides documents or
is dishonest in some way, misusing the Collaborative Law
process to take advantage of the other party? |
| A ] This could
happen. It also can and does happen in conventional
legal representation. What is different about Collaborative
Law is that the collaborative law agreement requires the
lawyer to withdraw if the client is being less than fully
honest, or is participating in the process with less than
good faith. For instance, if documents are altered
or withheld, or if a client is deliberately delaying matters
for economic or other gain, the lawyers have promised in
advance that they will withdraw, discontinuing representation
of the client. |
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| Q
] If I choose Collaborative
Law, will my rights be protected and, if so how? |
| A ] In a collaborative law process,
each party's attorney has an absolute duty to represent solely
his or her client's interests. The collaborative law process
does not mean that an attorney can or should be anything
less than 100% on the side of his or her client. What is
unique about collaborative law, however, is that the collaborative
lawyer takes responsibility for advancing the client's interest
in settlement (as well as other interests), and therefore
zealous advocacy in a collaborative negotiation is focused
on finding a mutually agreeable solution. |
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| Q
] How
can I get my spouse to participate? |
| A ] Talk with
your spouse about the benefits you see in using the collaborative
process. Give your spouse this web site address, or
print out these FAQs. Encourage your spouse to Find
a Collaborative Lawyer. If it is difficult to talk
to your spouse or partner, you might enlist the help of your
clergy person, a psychologist/therapist, or a mutual friend
to talk about Collaborative Practice. |
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| Q
] What happens if agreement cannot be reached
and one or both parties want a conventional divorce? |
| A ] The spouses and attorneys
are bound by a written pledge not to go to court over any
contested issue. If agreement can't be reached, Collaborative
Law attorneys may suggest bringing in mediators or other
professionals to facilitate a settlement. However, if one
or both parties wish to discontinue the collaborative process,
both attorneys are legally obligated to withdraw from representing
their clients. This means that both spouses have an incentive
to settle their case collaboratively in order to avoid having
to hire new attorneys and begin a traditional divorce process
through the court system, adding time and expense to the
divorce. |
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| Q
] Can either of us terminate the process? |
| A ] Yes. Either client can always
choose to end the collaborative process and go to court.
However, if the collaborative process terminates, both clients
will be required to hire new lawyers. |
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| Q
] Why must the collaborative lawyers resign
if one of us decided to go to court? |
| A ] Requiring
the collaborative lawyers to resign if one party terminates
the process protects the confidentiality of the collaborative
meetings. The requirement that the collaborative
lawyers be disqualified in the event of a breakdown also
guarantees that all participating lawyers will be totally
and exclusively motivated to have the process succeed. This
way, all participants are equally and fully invested in finding
the solutions to all problems. In addition, it is believed
that the way people participate in negotiation, and especially
the way lawyers participate, is affected by the certainty
that the lawyer will never litigate the case. Openness,
mutual trust, and cooperation replace guardedness, secrecy,
and threats as the techniques most likely to achieve ultimate
success. |
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| Q
] What is a "Collaborative Team?" |
| A ] The premise of the "collaborative
team" is that parties and their chosen professionals
act as a problem-solving team rather than as adversaries.
A collaborative team can be any combination of professionals
that the parties choose to work with to resolve their dispute.
It can be just the parties and their collaborative lawyers,
which in all cases comprise the Collaborative Law component
of Collaborative Practice. It can be the parties, their
collaborative attorneys and a financial professional or a
child care specialist. It can be the parties and divorce
coaches, working as a team either before or after the collaborative
attorneys are chosen and the legal process begins. |
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| Q
] What if my spouse chooses a lawyer who
doesn't know about or isn't trained in collaborative law? |
A ] Collaborative
lawyers have different views about this. Some will “sign
on” to a collaborative representation with any lawyer
who is willing to give it a try. Others believe that
is unwise and will not do that.
Trust between the lawyers is essential for the collaborative law process to work
at its best. Unless the lawyers can rely on one another’s representations
about full disclosure, for example, there can be insufficient protection against
dishonesty by a party. If your lawyer lacks confidence that the other lawyer
will withdraw from representing a dishonest client, it might be unwise to sign
on to a formal collaborative law process (involving disqualification of both
lawyers from representation in court if the collaborative law process fails).
Similarly, collaborative law demands special skills from the lawyers—skills
in guiding negotiations and in managing conflict. Lawyers need to study and practice
to learn these new skills, which are quite different from the skills offered
by conventional adversarial lawyers. Without them, a lawyer would have a hard
time working effectively in a collaborative law negotiation.
And some lawyers might even collude with their clients to misuse the collaborative
law process, for delay, or to get an unfair edge in negotiations. For these reasons,
some lawyers hesitate to sign on to a formal collaborative law representation
with a lawyer inexperienced in this model. That doesn’t mean your lawyer
could not work cordially or cooperatively with that lawyer, but caution is advised
in signing the formal agreements that are the heart of collaborative law where
there is no track record of mutual trust between the lawyers. You and your
spouse will get the best results by retaining two lawyers who both can show that
they have committed to learning how to practice collaborative law by obtaining
training as well as experience in this new way of helping clients through divorce. |
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| Q
] Why would I choose Collaborative Practice
over other options? |
A ] Collaborative Practice
or Do-it-Yourself: There are many legal aspects
that you may not be aware of involved in divorcing, separating
or even working out parenting arrangements. There
is always a risk to negotiating issues that have legal
implications without a good understanding of the applicable
law. Even if you “work things out” and
then take your agreement to a lawyer to “file the
paperwork,” there may be significant issues that
you did not address, or that have been resolved in a one-sided
way. If there is a power disparity in the relationship,
one party may be at a disadvantage right from the beginning.
You may not know what information to ask “the other
side” to provide, potentially resulting in decisions
made on incomplete information, which may then lead to
further disputes. You may not fully understand your
legal rights, and may unknowingly give up important legal
rights. While this may be the least expensive option,
it runs the risk of resulting in an incomplete and potentially
unfair resolution.
In the Collaborative process, each party is represented
by his or her own attorney. The attorneys make sure that
all the necessary issues are addressed, and all necessary
information is obtained, with the final decisions being
made by the clients. The clients have the benefit of their
attorneys’ help
and advice while maintaining their ability to set the pace
and goals of the process. If there are questions that require
the help of other professionals, such as financial specialists,
mental health professionals or child specialists, these experts
can be brought in to work for the clients. The collaborative
lawyers will file the necessary documents with the court at
the end of the process with the clients’ consent.
Collaborative Practice or Mediation:17
A ] single neutral person, who may be a lawyer, a mental health
professional, or simply someone with an interest in mediation,
acts as the mediator for and with the couple. The
mediator helps the couple reach agreement, but does not
give individual legal advice, and may or may not prepare
the divorce agreement. Very few mediators will process
the divorce itself through the court system. You
would have to do that yourself or hire a lawyer to do it. Retaining
your own lawyer to give you independent legal advice throughout
a mediation is wise, and most good mediators recommend
this. Waiting to secure independent legal advice
until late in a mediation often causes difficulties. It
is generally better for both spouses to have that legal
advice available from the start. In some locales
the two lawyers (yours and your spouse’s) sit in
on the mediation process, and in other locales they remain
outside the mediation process and meet privately with their
own client to give their legal advice. Either way,
in a mediation, you and your partner should expect to negotiate
face to face, directly, with the mediator’s assistance. The
two lawyers ordinarily do not take an active role in a
mediation. While mediation can work very well for
motivated couples with emotional maturity and a shared
desire to reach agreement, it can be challenging for many
people to negotiate in this way, face to face with a partner
during the turmoil of ending an intimate relationship—especially
where emotions run high or where communications are difficult.
Collaborative Practice was designed to
allow clients to have their lawyers with them during the
negotiation process, while maintaining the same absolute
commitment to cooperation and settlement as mediation.18
It is the job of the collaborative lawyers to work with their
own clients and one another to assure that the process stays
balanced, positive and productive. Once an agreement is reached,
it is drafted by the lawyers and reviewed and edited by both
the lawyers and the clients, until both clients are satisfied
with the document.
Both Collaborative Practice and
mediation rely on the voluntary and free exchange of information
and a commitment to resolutions that respect the parties'
shared goals. If mediation does not result in a settlement,
the parties may choose to use their attorneys in litigation,
if this is consistent with the scope of representation
upon which the client and lawyer have agreed. Consulting
experts used during mediation are not typically required
to sign a contract limiting their work to the context of
the mediation, and therefore they are not restricted from
participating in litigation if the parties go to court.
In Collaborative Practice, the lawyers and parties sign an
agreement, which aligns everyone’s interests in the direction
of resolution, and specifically provides that the collaborative
lawyers and any consulting experts will be disqualified from
participating in litigation if the collaborative process is
terminated without an agreement being reached. |
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| Q
] What is the difference between Collaborative
Practice and conventional divorce? |
| A ] In
conventional divorce, one spouse sues the other for divorce
and sets in motion a series of legal steps. These steps
often result in a settlement achieved with the court’s involvement. Even though
the parties ultimately settle, as the spouses go through
this process, they often come to view each other as adversaries,
and their divorce as a battleground. The conflict that
the process breeds often harms the parties’ children.
Collaborative Practice, by definition,
is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge
in writing not to go to court. They negotiate in good faith,
and achieve a mutually-agreed upon settlement outside of
court. The cooperative nature of Collaborative Practice can
greatly ease the emotional strain caused by the breakup of
a relationship, and protect the well-being of children. |
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| Q
] There is a lot of anger between us right
now. Is Collaborative Practice only for "amicable" divorces
or separations? |
| A ] Not at all. Anger is a natural
response to the disruption of our primary relationships in
life. We know that it is not easy to detach from a primary
emotional relationship. This is true even if we are unhappy
in that relationship. In Collaborative Practice, clients
receive support and guidance to better understand and manage
the delicate process of detachment, including the strong
feelings—such as grief and anger—that often accompany
it. Where emotions are running high and there is conflict
between you, the collaborative process won’t suppress
or deny it, but the process can offer both of you effective
support by giving you a place to deal with that conflict
as you work through your issues. |
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| Q
] Will Collaborative Law replace the traditional
litigation process? |
| A ] No. Collaborative Law is
not intended to replace the litigation process. Collaborative
Law is an alternative to litigation for
people to consider in resolving their disputes. The judicial
system and the litigation process are essential to a lawful
society. However, in some situations people, with the help
of their attorneys, are able to resolve their own disputes
without resorting to adversarial litigation. |
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| Q
] I am interested in getting trained in
Collaborative Law, how can I learn more? |
| A ] If
you are an attorney practicing in New York City, visit
the Upcoming Events section of this website to learn about
upcoming training opportunities in the New York City area
for eligible professionals. For
attorneys or affiliated professionals outside New York City,
visit the web site for the International Academy of Collaborative
Professionals at http://www.collaborativepractice.com to
learn about upcoming training opportunities in your area. |
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| Q
] How do I find an attorney trained in
Collaborative Law? |
| A ] Click
on Find a Collaborative Lawyer. |
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| 1The Collaborative Law
Institute of Texas, http://www.collablawtexas.com/1-2_how_it_works.cfm |
2Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
| 3Syracuse,
NY: CNY
Collaborative Family Law Professionals, http://cnycollaborativepractice.com/faq.php#6 |
4Syracuse,
NY: CNY
Collaborative Family Law Professionals, http://cnycollaborativepractice.com/professionals.php |
5The Collaborative
Law Institute of Texas,
http://www.collablawtexas.com/4-0_frequently_asked_questions.cfm |
| 6Syracuse,
NY: CNY Collaborative Family Law Professionals, http://cnycollaborativepractice.com/faq.php |
7Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
8New
York Association of Collaborative Professionals -- Kings,
Nassau, New York, Queens, Rockland, Suffolk and Westchester
counties, http://www.collaborativelawny.com/faq.php |
9Boston
Law Collaborative, LLC,
http://www.bostonlawcollaborative.com/blc/faqs.html |
10Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
11The Collaborative
Institute of Texas,
http://www.collablawtexas.com/4-0_frequently_asked_questions.cfm |
12Ithaca-based,
Collaborative Family Lawyers of Central New York, http://cnycollaborativepractice.com/faq.phpl |
13Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
| 14International
Academy of Collaborative Professionals, http://www.collaborativepractice.com/_FAQs.asp |
15Syracuse,
NY: CNY
Collaborative Family Law Professionals, http://www.cnycollaborativelaw.com/FAQ.html |
16Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
| 17Pauline
H. Tesler’s
2007 draft Collaborative Handbook For Clients, to be
published by the ABA. Reprinted with author’s
permission. |
| 18Adapted
from website of the International Academy of Collaborative
Professionals, http://www.collaborativepractice.com/_FAQs.asp |
19Adapted
from website of the International Academy of Collaborative
Professionals, http://www.collaborativepractice.com/_FAQs.asp |
20Ithaca Area Collaborative Law Professionals
http://www.collab-law.com/faq.html |
21Mid-Missouri
Collaborative & Cooperative Law Association,
http://www.mmccla.org/faq |
