Collaboration, also known as Collaborative Law, is a form of dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to Court. The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court.
In the context of probate and family law, Collaborative Law uses a team approach bringing together professionals such as financial planners and mental health professionals to help advise and support all of the clients’ needs and facilitate a complete settlement.
Below we have provided answers to many of the common questions that we are asked regarding Collaborative Law. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
- Less Expensive than Trial
- Work on your Timeline and your Terms
- Have an Advocate on your Side
- Opportunity to Work with Mental Health and Financial Experts
- Solve your Disputes Privately
- No Wasted Time or Expense in Court
- Negotiate Complicated or Unique Issues Out of Court
- Not Appropriate for Every Case
- Requires Voluntary Participation
- More Expensive than Mediation
- Failed Negotiations may Still End with Court Intervention
- Losing your Collaborative Attorney if Court becomes necessary
- Giving up Court Protections
Hiring a Collaboratively trained attorney is a personal decision that should take into consideration the individual facts relating to your case. In some situations, Collaborative Law can be a way to reach an agreeable resolution that costs far less than a divorce trial would. The Colalborative process also provides you with more control over your case by ensuring that your interests and goals are an integral part of the negotiation at every step of the way.
We encourage you to read further about the advantages and disadvantages of Collaborative Law to help you decide whether it would be an appropriate forum for resolving disagreements between you and your spouse regarding how to settle your case.
Unlike a mediator who doesn’t represent either party, in Collaborative Law each party has an advocate that advises them regarding their interests specifically. In addition, each party can have their own divorce coach depending on the process the parties choose.
The Collaborative process can include a team approach to disputes which utilizes specialized professionals to assist the attorneys. Attorneys are not trained to deal with mental health and communication challenges, which can range from dealing with loss to dealing with personality disorders. A Coach is typically a trained coach or mental health professional that participates in the Collaborative process in a neutral role.
In a divorce, the Coach can help the parties deal with their individual emotions that stem from the loss of their marriage, the process of the divorce, and other underlying past issues. In addition, the Coach can help the parties form a parenting plan and discuss the child related issues in a more constructive manner than the custody/visitation legal context. Sometimes this may also include a Child Specialist, i.e. a mental health professional involved in the case for the sole purpose of helping the parties understand what the children are going through as a result of the divorce, and how to help them.
Collaborative Law has many advantages over litigation. It is usually far less expensive than going to trial because all of the time spent with your Collaborative Law attorney is spent working towards agreement. When you go to court, much of your attorney’s time will be spent on court strategy or on waiting to be heard in Court. Collaborative Law can help you avoid the backlog in the courts, allowing for a more expedient resolution.
In addition to these practical concerns, though, Collaborative Law offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Collaborative Law is your opportunity to make these decisions together. After all, who knows what is better for you than you do.
On a related note, Collaborative Law is also an excellent forum for solving issues unique to divorce that our legal system cannot adequately address. As an example, many couples will litigate who will get custody of the family pets. While most judges are not interested in talking about this, the Collaborative Law process will be able to give an appropriate amount of attention to an issue that the parties may feel is important.
Finally, privacy is an important concern for many of our clients. Court is a public forum. Understandably, many people feel uncomfortable talking about the breakdown of their marriage to a judge in a courtroom full of strangers. Collaborative Law takes place in a more private and comforting environment, where the parties can set their own pace to better accommodate their own emotional and practical needs.
Collaborative Law is not an appropriate forum for coming to a resolution for everyone. For example, when there is a history of abuse between the parties, Collaborative Law often fails because the parties cannot reach the necessary level of trust to mediate their dispute amicably. In Mediation, domestic violence can make resolution impossible, but in Collaborative Law, agreements are still possible because the parties both have an advocate. However, the trust issues created by domestic violence can still prevent resolution in many cases.
Even when domestic violence isn’t an issue, if the parties are not willing to be forthcoming and participate in the process honestly, then Collaborative Law can fail. Reaching agreements in any setting requires at least some level of cooperation and trust, and cases where this cannot be achieved will almost always end in litigation.
Furthermore, there are no guarantees that Collaborative Law will result in an agreement, which could end up costing you more in the long run. You should honestly evaluate whether you and the other side are willing to participate in an open process before entering into Collaborative Law.
In Massachusetts, there is no certification for Collaborative Law attorneys. There are Collaborative Law trainings, which are recommended by the International Academy of Collaborative Professionals. In addition, Collaborative Law attorneys are still required to comply with all of the ethics rules that already apply to attorneys, including confidentiality and advocacy. Every attorney at Skylark Law has taken a Collaborative Law training approved by the IACP.
The Collaborative process can vary greatly in length, but on average it lasts between two and ten 2-hour sessions. A case with fewer issues, such as a Modification or Paternity case, will take less time. A case that is more complicated, such as a divorce involving complicated businesses, self-employment income, or custody disputes, can often take longer. The length of the process will depend on the attitude of the individuals, how complicated their disputes are, and how flexible their schedules are.
The Collaborative process involves working with a team of professionals to resolve your case without going to court. The process involves two attorneys (one representing each party), and can also include a neutral financial planners and either a neutral coach or one to work with each party.
The parties meet together with their attorneys to work towards a mutually agreeable settlement. The parties may also meet individually with their attorneys. The collaborative meetings, similar to mediation, should include full disclosure and voluntary participation. Unlike mediation, though, in these collaborative meetings each party has an advocate that can speak for them and advise them as to their rights.
In addition to meeting with your attorney individually, you will meet with a Coach individually and with the other side. In these meetings, the Coach, who is typically a mental health professional, will help you and your spouse get through the emotions of the process and in a divorce will assist with negotiating a parenting plan if you have minor children. You may also meet with a neutral Financial expert in order to create budgets and a complete asset and liability schedule.
With the help of the Financial neutral and Coach, you will meet with your attorneys in group meetings. In these meetings you will confirm the financial details presented by the Financial expert(s), present your separate interests, and brainstorm solutions to resolve the divorce disputes in a collaborative setting. In addition, as needed you will meet with your attorney and the coach individually throughout the process to ensure that you are comfortable with the progress and fully informed of your rights.
If the case requires a court hearing (like a divorce), once an agreement is reached, the parties and their attorneys file it with the Court and present the agreement to a Judge at an uncontested hearing.