Collaborative Law is a cutting-edge alternative to litigation in which the parties and their respective attorneys formally agree to meet and negotiate an agreement in good faith without going to court. California Family Code Section 2013 validates the process and defines a collaborative law process as one in which the parties and their professionals agree in writing to use their best efforts and to make a good faith attempt to resolve disputes related to the family law matter without resorting to adversarial judicial intervention.
COLLABORATIVE LAW PHILOSOPHY
The collaborative law philosophy is that when issues are openly discussed by and through complete transparency, problem-solving can be oriented toward the identification of such issues and resolution by and through an interest-based negotiation rather than through a positional approach in the court-mandated traditional process. A collaborative approach avoids parties becoming polarized with their positions and encourages the parties to consider options that may not otherwise be available through the court-mandated process. Both parties agree to full and complete disclosure of all pertinent information regarding their assets and liabilities, income and expenses, and any other information, including circumstances of their children, necessary to achieve a complete resolution.
COLLABORATIVE ALLIED PROFESSIONALS
Unlike in mediation where there is a third-party neutral facilitator guiding the process, in collaborative practice the parties themselves and their attorneys are communicating with each other directly in an open and honest dialog, exchanging information, identifying needs and expectations. Confidentiality is the hallmark for assuring a safe and level comfort zone. The process is underscored by the understanding that if either party decides to litigate rather than reach a collaborative agreement, the attorneys must withdraw from the case and help their clients make an orderly transition to successor trial-oriented attorneys.
Collaborative practice involves allied professionals, from time to time, and on an as-needed basis. The parties may retain any number of agreed-upon neutral advisors, such as certified public accountants, child development specialists, mental health professionals acting as communications coordinators (coaches), appraisers, and financial planners. The process transforms into an interdisciplinary team using their combined abilities to reach a "win-win" for the clients.
FIVE KEY INGREDIENTS FOR COLLABORATIVE PRACTICE
- Mandate to make full disclosure of all necessary information
- Requirement by both lawyers not to go to court and to resign if collaborative resolution is not obtained
- If consultants necessary are brought in as neutrals rather than as hired-guns for one side or the other
- Maintenance of confidentiality
- Good faith commitment by the participants to be fair, reasonable and respectful with each other
COLLABORATIVE FAMILY LAW AREAS
The collaborative law process is especially useful in a divorce where there are minor children. By taking into consideration life-long responsibilities that remain after the divorce and by "thinking out of the box" the parents can create a safe environment for their children. Spouses and parents make their own decisions, with informed consent, and voluntarily come to mutual understandings on all aspects of their divorce including child custody, visitation and support, as well as division of their community property. In the area of spousal support the parties can again create options that may not be available through the court-mandated process. The collaborative law approach to creating premarital, cohabitation, and domestic partnership agreements enhances couples to understand each other's expectations from the inception, and eliminates or minimizes the need for potential litigation in the future. The collaborative law process is particularly beneficial to parties who are attempting to reach a new agreement after their divorce based upon change of circumstances or unfulfilled expectations.
IS COLLABORATIVE LAW RIGHT FOR YOU?
Consider whether the collaborative law process is a sensible, safe and sensitive way for you and your spouse to divorce or whether the process is appropriate for you in any other family law matter. In order to determine whether you are an appropriate candidate for the process please feel free to contact us.