In recent years, a new procedure known as collaborative family law has been emerging as an alternative to the traditional, adversarial approach. In a collaborative divorce, each party can still be represented by an attorney. The parties and attorneys sign a collaboration agreement, stating that they will make their best efforts to reach a fair agreement on the issues in the case.
What makes a collaborative divorce different is that if the negotiations fail and some or all issues can’t be settled out of court, the attorneys on each side are required to withdraw. This might seem strange at first, but the point is to encourage negotiation and settlement of the issues to the greatest extent possible. Because the attorneys can not continue to represent their clients if the case goes to court, the lawyers have no incentive to hold out unreasonably and push the case into court. Likewise, the parties will have to start over from the beginning with new attorneys if they fail to reach an agreement. Therefore, collaborative law is a great option for parties who are committed to avoiding court and settling their issues through mediation and negotiation.
Any communications between the parties and their attorneys during the collaborative process are confidential and will be inadmissible in court should the negotiations fail. The collaboration agreement also causes any applicable time periods or restrictions, such as statutes of limitations, to stop running during the collaborative process. This time stoppage does not apply to the amount of time the parties have been separated for purposes of eligibility for divorce.
The collaborative law process can make effective use of out-of-court negotiation techniques such as mediation. At a mediation, each party is generally located in a separate room from the other, along with his attorney. A third party, the mediator, will go back and forth between the two rooms with demands, concessions, and suggestions and try to work toward an agreement on the issues. The mediator is usually an attorney who knows the law and can give an outside perspective of what the situation looks like to a person who is not personally invested. The mediator can also offer an unbiased opinion that will be similar to what a judge might think if the case was taken to court. Mediation is a powerful tool for helping the parties reach a fair and just agreement on the issues.
If you are interested in pursuing collaborative divorce as an alternative to the traditional process, please contact our office for more information.