COLLABORATIVE LAW AND PRACTICE

The South Carolina Collaborative Law Institute (SCCLI) was formed in 2004 by a group of attorneys, mental health professionals and financial professionals who believed that the court system was not the best place to resolve family law disputes.  Because of this disenchantment with traditional litigation, Minnesota family law lawyer, Stu Webb, created Collaborative Law in the 1980’s.

Collaborative Law is a way for you to resolve disputes respectfully, without going to court, while working with trained professionals who are important to all areas of both you and your child(s) life.

What is it?

Collaborative Practice is a new way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court.  The term encompasses all of the models that have been developed since Minnesota lawyer Stu Webb created the Collaborative Law model in the 1980s.  This model is at the heart of all of Collaborative Practice.  Each client has the support, protection and guidance of his or her own lawyer.  The lawyers and the clients together comprise the Collaborative Law component of Collaborative Practice.

While Collaborative lawyers are always a part of Collaboration, some models provide child specialists, financial specialists and divorce coaches as part of the clients' divorce team.  In these models the clients have the option of starting their divorce with the professional with whom they feel most comfortable. Then the clients choose the other professionals they need.  Therefore, the clients benefit throughout collaboration from the assistance and support of all of their chosen professionals.

Although Collaborative Practice comes in several models, it is distinguished from traditional litigation by its inviolable core elements.  These elements are set out in a contractual commitment among the clients and their chosen collaborative professionals to:

• Negotiate a mutually acceptable settlement without using the court system to decide any issues for the clients;

• Withdrawal of the professionals if either client goes to court;

• Engage in open communication and information sharing; and

• Create shared solutions that take into account the highest priorities of both clients.

What are Collaborative Law, Collaborative Practice, the Collaborative Process, and Collaborative Divorce?

Collaborative Law, Collaborative Process, and Collaborative Divorce are terms often used interchangeably.  However, they are all components of Collaborative Practice, which has these key elements: 1) the voluntary and free exchange of information; 2) the pledge not to litigate and the withdrawal of both attorneys - and in most cases all of the other professionals on the team - should either party initiate litigation in spite of this pledge, and 3) the commitment to resolutions that respect the parties' shared goals.  Collaborative Law describes the legal component of Collaborative Practice, made up of the parties and their attorneys.

Collaborative Process means the key elements of the process itself.

While “Collaborative Divorce” refers to resolution of particular types of disputes (divorce and domestic partnerships), the other terms can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law areas where the parties are likely to have continuing relationships after the current conflict has been resolved.

How it Works

When a couple decides to pursue a Collaborative Practice divorce, they each hire Collaborative Practice lawyers.  All of the parties agree in writing not to go to court.  Then, each spouse meets privately with his or her lawyer.  Then the two clients and two attorneys all meet together in face-to-face discussions.  Additional experts, such as divorce coaches and child and financial specialists, may join the process, or in many cases, be the first professional that a client sees.  These sessions between spouses and their attorneys are intended to produce an honest exchange of information and expression of needs and expectations.  The well-being of any children is especially addressed.  Mutual problem-solving by all the parties leads to the final divorce agreement.

Once you have chosen Collaborative Practice (Collaborative Law/Collaborative Divorce), you may take advantage of the option to put together a team to work with you as you make your way through this life transition.  While you will always need to select Collaborative lawyers to assist you throughout the process, you may also choose to start the process with a Collaborative divorce coach or financial expert.  Wherever you begin the process, you will have a chance to meet privately and together with your professionals.  Collaborative Practice is unique in that it calls for both of you, and your lawyers, to come together for face-to-face discussions and negotiations—outside the courtroom.  In an atmosphere of openness and honesty, all assets are disclosed, needs are communicated, and solutions are explored.  When there are children, their interests are given foremost priority.

The end result of Collaborative Practice is a divorce agreement that has been achieved through mutual problem solving.  You, along with your lawyers and other chosen collaborative professionals, take control of shaping the final agreement, rather than having a judgment imposed on you by the court.

What is a "Collaborative Team?"

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.  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.

What is the “Interdisciplinary Team Model”?

The interdisciplinary collaborative team model is a multi-disciplinary team approach to dispute resolution (usually separation and divorce), which includes attorneys, coaches, a financial specialist, and when there are minor children, a child specialist working interactively as co-equals.  Professionals on the team all subscribe to the same core values and shared beliefs, consistent with the IACP ethical guidelines that none of the team members will be involved in any court process concerning a shared case, and all members will withdraw from the case if it becomes a court process.

Team members are selected by the clients at the beginning of the case.  The team is ideally made up of two collaborative lawyers, one for each partner, two divorce coaches, one for each partner, a child specialist who represents the voice of the child(ren), and one neutral financial specialist along with the divorcing couple.  A key element of the team approach is that the couple can enter into the interdisciplinary collaborative team process through any “door.” A couple, for example, might first contact a Collaborative divorce coach, a Collaborative lawyer or a Collaborative financial specialist to begin the process.  Regardless of which "door" they enter, the couple will be guided to select their team. Many teams share a common participation agreement which the couple signs first with their attorneys.

The divorcing couple works with their divorce coaches to enhance their communication skills as well as learn self management and negotiation skills to help them during their divorce process.

When they first meet individually with their divorce coaches, they work on acquiring the skills and knowledge they will need to have successful four-way meeting with their coaches as well as with their collaborative lawyers.  During these meetings the couple learns how to communicate their concerns effectively and discuss options for their parenting plan.  These four-way meetings are not only crucial in helping the couple to work with the rest of the team during the divorce process, but can assist them in improving their co-parenting relationship as well.

During this process, the child specialist talks with the parents and meets with the child to assess the child's needs and concerns.  The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process.  Unlike a custody evaluator, the child specialist does not make specific recommendations, but works with the coaches and the parents in making informed decisions to help their child.  This information that the child specialist provides is essential not only for parents, but for the entire team as well.

With the information received from the child specialist, the couple, with the help of their coaches, will craft the parenting plan which is then incorporated into their final divorce document.

The neutral financial specialist meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information.  The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options.  Often this information is presented in a five-way meeting with the financial specialist, the two collaborative lawyers, and the couple where the options are discussed.  Then the couple, along with their attorneys, crafts their financial settlement.  Often the process is coordinated by a case manager; usually one of the divorce coaches.  This professional acts as a case coordinator to keep all the team members informed and the process on track.

This integrated model provides the couple with the services they need from the professional most qualified to address each of the complex and varied issues of divorce.  Working together, these Collaborative professionals help divorcing couples achieve an outcome that would not be possible without this cooperative team involvement.

What is the difference between Collaborative Practice and conventional divorce?

In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps.  These eventually result in a settlement achieved with the involvement of the court.  Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground.  The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the 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.

What is the difference between Collaborative Practice and Mediation?

In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case.  However, the mediator cannot give either party legal advice, and cannot be an advocate for either side.  If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions.  Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.

Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda.  It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, 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 lawyers and the parties, until both parties 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 counsel in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed.  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 attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached.  Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.

What does Collaborative Practice do to minimize the hostility often present in divorce?

Collaborative Practice is guided by a very important principle: respect.  By setting a respectful tone, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation.  In addition, Collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive.  The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.

Is it for you?

Divorce is a highly personal matter, and no one approach is right for everyone.  Many couples, however, have found that Collaborative Practice (Collaborative Law/Collaborative Divorce) is a welcome alternative to the potentially destructive aspects of conventional divorce.  To determine if Collaborative Practice is right for you, ask yourself if these values are important:

• Maintaining an atmosphere of respect, even in the presence of disagreements.

• When the parties have children, prioritizing their needs.

• Listening objectively to your spouse's needs, fully expecting that your own needs will be given equal consideration.

• Working creatively and cooperatively to solve issues.

• Seeing beyond the frustration and pain of the present moment to plan for the future.

• Behaving in an ethical manner toward your spouse.

• Keeping control of the divorce process with you and your spouse, and not relegating it to the court system.

If you can affirm these basic principles, it is likely that Collaborative Practice would be a viable option for you.  Talk to a Collaborative professional for a more in-depth determination based on your individual situation.

The Advantages of Being Collaborative

• Designed as an alternative to conventional divorce, Collaborative Practice offers many distinct advantages including:

• You keep control of the process yourselves, without going to court.

• Children's needs are given priority.

• You and your partner commit to reaching agreement through a problem-solving approach.

• An atmosphere of respect preserves self esteem.

• Open communication allows both of you to express your needs for moving forward and gives you new tools for effective problem-solving in the future.

• There is full disclosure of facts and information.

• Face-to-face meetings in the presence of lawyers make negotiations direct and efficient and allow for mutually created resolutions.

The Collaborative process helps both of you plan for your own future and that of your children, and to begin new lives for all of you.

Philosophy…Something everyone should agree on: RESPECT.

It is simply a fact that about half of all marriages end in divorce, and countless non-marital relationships fail, too.  But the emotional devastation that often accompanies the loss of a relationship doesn't have to be a fact as well.  That is the thinking behind Collaborative Practice.  Long-sought by divorcing individuals and other concerned professionals who assist them, Collaborative Practice is the alternative to “divorce as usual.”  It is designed to minimize the hurt, the loss of self esteem, the anger and alienation that occur too frequently with divorce.

The Collaborative philosophy is built on a belief in human dignity and respect. Individuals may cease being partners, but they don't cease being worthy human beings.  Every part of Collaborative Practice - from open communications to solutions - based negotiation to out-of-court settlement - is intended to foster respect.  When respect is given and received, self esteem is likely to be preserved, making discussions more productive and an agreement more easily reached.

The end of a marriage or relationship is tragic enough.  Collaborative Practice believes that the process of divorcing shouldn't add to the pain, but rather help the spouses and children foresee a hopeful future.

How does Collaborative Practice focus on the future?

Divorce is both an ending and a beginning.  Collaborative Practice helps each spouse anticipate their needs in moving forward, and include these in the discussions.  When children are involved, Collaborative Practice makes their future a number one priority.  As a more respectful, dignified process, Collaborative Practice helps families make a smoother transition to the next stage of their lives.

Is Collaborative Practice a faster way to get a divorce?

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.

What clients say about Collaborative Practice and Professionals:

• " I was pleased with the process and will recommend it to anyone I know who is...thinking about separation or divorce"

• "It was very emotional but also empowering for me to negotiate the settlement that I felt was fair for both parties."

• "It was a positive process for me. I actually found the self-confidence to stand up for myself and verbalize my own needs."

• "I was pleased that we were able to negotiate what felt fair to both of us."

• "I was pleased that it actually cost less than I figured."

• "Well, we can pay people to fight for each of us, or we can fight and pay people to referee, or we can work it out and pay people to help us. I'd rather do the last one!"

• "I'm really glad we chose this process. For our family and for each other, it allows us to have sustainable amicability."

• "You listened well to me, and my upset and my needs. You handled things in an orderly, thorough and gentle manner. I feel I got every penny's worth..."

• "The collaborative process provided three significant benefits: (1) the private nature in which it is performed; (2) less contentiousness and therefore, less anxiety-ridden; and (3) the outcome seemed fair for both parties. You embodied confidence and compassion. These are two traits which were necessary to help me feel comfortable and focused through this painful situation."

• "... made me feel important, and that everything was done as your highest priority... I like the collaborative process. It is clear and when it is not clear, questioning the problem brings an answer."

• "Thank you for everything you have done for my family and me. I can finally get some sleep!"

• "... Divorce is difficult, and with the passage of time, and all of your help and support, my life is happy. Thank you, thank you, thank you."

• "It's done. I can sleep. I can laugh. I can play. All thanks to you.”

Links:

South Carolina Collaborative Law Institute: http://southcarolinacollaborativelawinstitute.com