Collaboration in family law disputes is a relatively recent alternative dispute resolution approach that is gaining ground fast in the legal community across the United States.
As of March 2020, the Uniform Collaborative Law (UCLA) has been adopted in 19 states and has been introduced in 5 other states. The law regulates the use of collaborative law, a form of alternative dispute resolution. The UCLA standardizes the most important features of the
collaborative law process. You can read more about the Act at https://www.uniformlaws.org/home.
Benefits of Collaborative Law
The Uniform Law Commission states that there are seven benefits to the UCLA:
- Highly successful in resolving most cases. 87% of Collaborative divorce cases settle in the collaborative process and an additional 3% result in reconciliation.
- In Family Law cases, out of court settlements have been shown to have significant benefits to families:
- Conflict is lessened
- Children benefit from reduced conflict
- Costs are likely reduced
- Co-parenting relationships are supported
- Children are often given a voice in the process using a safe, neutral venue. Research shows that parenting plans where children have had a voice are more durable and developmentally responsive to the children.
- Parties are more vested in the outcome and satisfied with the process when they are part of the dispute resolution process, as in Collaborative law, then if the outcome was imposed upon them by a third-party decision maker.
- Families in collaborative cases gain experience in successfully resolving conflict which aids them in resolving conflict post-divorce. Where they cannot resolve post-divorce conflict, families have a network of professionals from their collaborative case to help them deal with the dispute. (Translate – parties are probably less likely to go back to court if they participate in a collaborative case as opposed to litigating.)
- Reduces court dockets and the burden on courts.
- Benefits society and is good public policy.
What is Collaborative Law and How Does it Work?
Collaborative law is a new way to resolve family law disputes. It allows parties to control the dispute and remove the matter from the court (i.e.,
litigation) into a conciliatory and mediatorial process. It provides a process that disputing parties can choose to troubleshoot and problem solve in collaboration with their attorneys and independent third party “neutral” professionals. Instead of fighting to win, the parties work together with their separate attorneys and appropriate third-party neutrals.
Both parties retain separate attorneys. Their job is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.
Each party in the Collaborative law process signs a contractual agreement which includes the following terms:
1. Disclosure of Documents.
Each party agrees to honestly and openly disclose all documents and
information relating to the issues. Neither party may take advantage of a
miscalculation or an inadvertent mistake. Instead, such errors are
identified and corrected.
Each party agrees to act respectfully and avoid disparaging or vilifying
any of the participants.
3. Insulating Children.
As part of the process all participants agree to insulate the children from
the proceeding and to act ins such a way as to minimize the impact of
the divorce on them.
4. Sharing Experts.
The parties agree to implement outside experts where necessary in a
cooperative fashion and share the costs related to those experts. (e.g.
real estate appraisers, business appraisers, parenting consultants,
vocational evaluators, or accountants)
5. Win-Win Solutions.
The primary goal of the process is to work toward an amicable solution
and to create a “win-win” situation for all.
6. No Court.
Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system with new lawyers and hefty retainers.
The collaborative law process recognizes that spiritual and emotional issues exist that cannot be addressed by the legal system. The collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of a team approach to find solutions. It helps the parties avoid unnecessary emotional and financial blood-letting.
A team of professionals is assembled to help the parties understand and resolve their disputes in many different contexts. All disputes are addressed (i.e., legal, financial, emotional, parenting, etc.). The team of professionals may include mental health counselors, relational coaches for each party, neutral financial advisors or accountants, child/parenting specialists, vocational experts, appraisers, etc.
A child or parenting specialist may play a very important role in the collaborative process. So often, children become the unintended (and intended) pawns and victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child or parenting professional works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.
Financial professionals may be used to help define the values of assets. In the litigious court process, often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. This often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.
Most Cases Settle.
The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system, that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions.
Of course, collaborative law will not work in every case. Both parties must be willing to engage in it with good faith and a genuine desire to resolve all issues. However, in cases where collaborative law is used, settlements happen faster and at a fraction of the typical fees and costs cost associated with divorce.
Doesn’t it make more sense to seek resolution before wounds are inflicted, bridges are burned, and missiles are launched in court?
“Conciliate and Collaborate, Don’t Litigate!”
It will save you much heartache and money.