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Frequently Asked Questions
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1. What is Collaborative Family Law?
2. What is the difference between Collaborative Family Law and
mediation?
3. What information and documents are available in
Collaborative Family Law negotiations?
4. What happens if one side or the other refuses to disclose or is dishonest in some
way, or misuses the Collaborative Family Law process to take advantage of
the other party?
5. Is Collaborative Family Law the best choice for me?
6. My friends'lawyers says that they settles most of their cases. How is Collaborative
Family Law different from what other lawyers do when they settles cases in
the adversarial system?
7. Why is Collaborative Family Law such an effective settlement process?
8. Why is it so important to sign the official Collaborative Family Law Agreement and to
use only lawyers with collaborative training and skills? Can't you work
"Collaboratively" with any other lawyer but still go to court if
the process doesn't work?
9. How do the Allied Professionals contribute to the process?"
1. What is
Collaborative Family Law?
Collaborative Family Law is a formal
court-recognized process for resolving divorce cases and other Family Law
matters without the use of the court/litigation system. In other words, as
part of their commitment to this process, the parties guarantee each other
that they will never be subjected to our traditional, adversarial,
conflict-based court system for the resolution of any divorce issues.
Both parties retain separate, specially-trained
lawyers whose only job is to help them to settle the issues in their divorce.
All participants agree to work together respectfully, honestly, and in good
faith to find mutually acceptable solutions to the legitimate needs of both
parties. No one may go to court, or even threaten to do so, and if that were
to occur, the Collaborative Family Law process would be terminated
automatically and both lawyers would be disqualified from any further
involvement in the case. Lawyers hired for a Collaborative Family Law
proceeding can never under any circumstances go to court or otherwise engage
in any Family Law litigation on behalf of either party against the other.
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2. What is the
difference between Collaborative Family Law and mediation?
In mediation, there is one "neutral"
who helps the disputing parties try to settle their case. The mediator cannot
give either party legal advice, and cannot help either side advocate its
position. If one side or the other becomes unreasonable or stubborn, or lacks
negotiating skill, or is emotionally distraught, the mediation can become
unbalanced, and if the mediator tries to deal with the problem, the mediator
is often seen by one side or the other as biased, whether or not that is so.
If the mediator does not find a way to deal with the problem, the mediation
can break down, or the agreement that results can be unfair. If there are
attorneys for the parties at all, they may not be present at the negotiation
and their advice may come too late to be helpful.
Collaborative Family Law was designed to deal
more effectively with these problems, while maintaining the same absolute
commitment to settlement as the sole agenda. Each side has immediate access to
well qualified legal advice that is built into the process and available at
all times during the process. Even when one side or the other lacks
negotiating skill or financial understanding, or is emotionally upset or
angry, the playing field is leveled by the presence of their Collaborative
Family Lawyers. The lawyers share a mutual commitment and responsibility to
collaborate with each other and to work with their own clients to insure that
the process stays positive and productive.
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3. What
information and documents are available in Collaborative Family Law
negotiations?
Both sides sign a binding
agreement<<link>> to disclose all documents and all information
that relates to the issues and to do so early and fully and voluntarily.
"Hide the ball" and stonewalling are not permitted. Where it would
be helpful in promoting understanding of the necessary information, other
professionals (C.P.A.'s for example) who are familiar with the Collaborative
Family Law process are retained for the benefit of both parties to assure full
mutual understanding of the facts and alternatives.
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4. What happens
if one side or the other refuses to disclose or is dishonest in some way, or
misuses the Collaborative Family Law process to take advantage of the other
party?
Because we are all human, it is possible that
this could happen in a Collaborative Family Law proceeding. This is exactly
the type of thing that can and does happen all too frequently in court based,
adversarial divorce litigation. What's different about Collaborative Family
Law is that the collaborative agreement requires a lawyer to withdraw if his
or her client is being less than fully honest, or participating in the process
with less than full good faith. For instance, if documents were to be altered
or withheld, or if a client were to be deliberately delaying matters for
economic or other gain, the lawyers have promised in advance that, if they
cannot rectify the situation, they will withdraw and will not continue to
represent the client. The same is true if the client fails to keep agreements
made during the course of negotiations, for instance an agreement to consult a
vocational counselor, or an agreement to engage in joint parenting counseling.
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5. Is
Collaborative Family Law the best choice for me?
The Collaborative Family Law process is not
necessarily right for every client, but it is well worth considering if some
or all of these are true for you:
a. You want a civilized, respectful resolution
of the issues.
b. You do not want to be subjected (nor, to
subject your spouse) to the invasive, hostile and adversarial activities that
are the every day fare of the court-based divorce system.
c. You and your partner will be co-parenting
children together and you want the best co-parenting relationship possible.
d. You want to protect your children from the
harm associated with litigated dispute resolution between parents.
e. You and your spouse or partner have a circle
of friends and extended family in common that you both want to remain
connected to.
f. You have ethical or spiritual beliefs that
place high value on taking personal responsibility for handling your own
conflicts and doing so with integrity.
g. You value privacy in your personal affairs
and do not want details of your family or financial restructuring to be
available in the public court record.
h. You value control and autonomous decision
making and do not want to hand over decisions about restructuring your
financial and/or child-rearing arrangements to a judge or to any other
stranger who does not know your family and who will not have to live with the
results.
i. You recognize the restricted range of
outcomes and the "rough justice" that is the general rule in the
public court system, and you want a more creative and individualized range of
choices available to you and your spouse or partner for resolving your issues.
j. You place as much or more value on the
relationships that will exist in your restructured family situation as you
place on fighting in an effort to obtain the maximum possible amount of money
for yourself.
k. You understand that conflict resolution with
integrity involves achieving not only your own goals but finding a way to
achieve the reasonable goals of the other person.
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6. My friends'
lawyers says that they settles most of their cases. How is Collaborative Family
Law different from what other lawyers do when they settles cases in the
adversarial system?
There is a world of difference between a
settlement that is negotiated during litigation and a settlement that takes
place in an atmosphere where you are assured that there will be no adversarial
litigation and no court proceedings - not even the threat of court. Most
litigated family law matters settle figuratively, if not literally, "on
the courthouse steps". By that time, a very great deal of money has been
spent on a process that causes a great deal of emotional damage and one which
will often subject the parties to years of hostility and discomfort. These
litigation settlements are reached under conditions of considerable tension
and anxiety and both "buyer's remorse" and "seller's
remorse" are common. All too often the result of such a
"settlement" includes a great deal of (very understandable)
resentment toward the terms and demands of the settlement, toward the system
and toward all of the participants in that process.
Nothing could be more different from what
happens in a typical Collaborative Family Law settlement. The process is
geared from day one to make it possible for creative, respectful collective
problem-solving to happen. It is quicker, more creative, more individualized,
far less stressful, and overall far more satisfying in its results than what
occurs in most conventional settlement negotiations. Our clients tell us that
their experiences in the Collaborative Family Law process are worlds away from
the experiences of their friends and acquaintances who have taken their
divorces to the courts. We as Collaborative Family Lawyers can also tell you
how much more satisfying it is for us as human beings to be able to offer our
clients a civilized, respectful and creative alternative to the litigated
divorce.
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7. Why is
Collaborative Family Law such an effective settlement process?
Because we Collaborative Family Lawyers
approach our collaborative cases with a completely different state of mind
about what our job is. We call it a "paradigm shift." Instead of
being dedicated to using the adversarial system in an effort to obtain the
greatest possible piece of the pie for our own clients, almost without regard
to the human and financial costs Collaborative Family Lawyers are dedicated to
creating an atmosphere that is dignified, respectful and creative, one in
which our clients will achieve their highest intentions for themselves in
their post-divorce restructured families.
Collaborative Family Lawyers do not act as a
hired guns. Nor do they take advantage of mistakes made by the other side. We
do not threaten, coerce, insult or focus on the negative in either of the
parties. We expect, we lead by example and we encourage the highest good-faith
problem-solving behavior from the parties and we stake our own professional
integrity on delivering this service effectively to all of the clients of the
Collaborative Family Law process.
Collaborative lawyers trust one another; we
work, train, study and engage in peer review together. We know from these
experiences over the years that we each share these same values and
priorities. Although it is true that we still owe a primary duty to our own
clients, within all mandates of professional responsibility, we also know that
the only way that we can truly serve the real best interests of our clients is
to behave with, and demand, the highest integrity from themselves, their
clients, and the other participants in the Collaborative Family Law process.
Collaborative Family Law offers a greater
potential for creative problem-solving than does either mediation or
litigation, in that only Collaborative Family Law puts two lawyers in the same
room pulling in the same direction to solve the same list of problems. Lawyers
excel at solving problems, but in conventional litigation they pull in
opposite directions. No matter how good a lawyer I am for my own client, I
cannot succeed as a Collaborative Family Lawyer unless I also can find
solutions to the other party's problems that my client finds satisfactory.
This is the special characteristic of Collaborative Family Law that is found
in no other dispute resolution process.
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8. Why is it so
important to sign the official Collaborative Family Law Agreement and to use
only lawyers with collaborative training and skills? Can't you work
"Collaboratively" with any other lawyer but still go to court if the
process doesn't work?
The special power that Collaborative Family Law
has to spark creative conflict resolution seems to happen only when the
lawyers and the clients are all pulling together in the same direction, to
solve the same problems in the same way. If the lawyers can still consider
unilateral resort to the courts as a fallback option, their thought process
does not become transformed; their creativity is actually crippled by the
availability of the court and adversarial system, coercion and conventional
trials. Only when everyone knows that it is up to the four of them and only
the four of them to "think their way" to a solution does the special
"hyper creativity" of Collaborative Family Law get triggered. In
every Collaborative Family Law process there is a moment when each person
realizes that solving both of clients' problems is the responsibility of all
four participants. It is that realization and the assumption of mutual
responsibility which enables people with seemingly conflicting goals to work
together to create solutions that they can each endorse. The Collaborative
Family Law process is much different from what lawyers in an adversarial,
litigated divorce do when they agree to "cooperate." It requires
special techniques, attitudes and understandings which are based on special
training, talents and procedures and on shared experiences in the
Collaborative Family Law process.
Collaborative Family Lawyers can and we do
wherever possible work cooperatively with other lawyers in conventional court
system divorce proceedings but, neither the experience nor the results are the
same as in a true "collaborative" proceeding.
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9. How do the Allied Professionals contribute to the process?"
FINANCIAL PROFESSIONALS can be a life saver in a Collaborative Family Law case since they function as
neutrals and have no vested interest beyond providing information, overview and options to the parties.
They can assist with the discovery process by gathering and organizing documents and educate the clients
regarding the short and long term effects of a settlement plan. They can provide practical planning,
guidance and support to the divorce process.
MENTAL HEALTH PROFESSIONALS can be employed in a number of roles during the collaborative process.
They can serve as divorce coaches to help parties communicate more effectively with one another during
the meetings. Since they are adept at picking-up the less obvious psychological issues that can undermine
effective communication and resolution of differences, they can keep counsel appraised of of problem
areas in the marriage relationship or with a minor child. Mental health professionals can also serve
as child specialists, meeting with the chidren, exploring their reactions to the family break-up and
serving as a voice for the child. Finally, they can assist the parents in crafting a parenting plan which
best fosters the children's developmental needs.
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