Collaborative law focuses on cooperation as opposed to adversarial litigation. The practice of collaborative law represents a paradigm shift in the approach of attorneys and parties who are most familiar with resolving conflict through litigation. The shift to the collaborative paradigm and away from the litigation paradigm focuses the parties exclusively on the work of settlement as opposed to the work of litigation practiced in court. While settlement certainly occurs in the litigation model of divorce, the specter of being “hauled into court” is removed from the collaborative process as the parties and attorneys commit themselves to the work of a purely negotiation based process.
The key to collaborative law is the commitment of the parties and attorneys to the settlement process and the abandonment of the litigation model. This is achieved through a collaborative contract entered by parties and counsel in which they all agree that litigation is not an option during the process. To the extent that one of the parties breaches that contract and moves the case into litigation, both attorneys who committed to the collaborative process must leave the case. Parties are then required to hire “litigation counsel” to replace their “settlement counsel”.
The practice of collaborative law requires a focus shift by both parties and attorneys. Retention of a collaborative attorney as settlement counsel does not change the nature of the attorney-client relationship, but instead changes the attitudes and tasks both lawyer and client take as they move the case to resolution. The focus on settlement as the ends and not as a means to avoid court requires parties to move out of their corners and into a discussion focused on peacefully changing the family structure in the most mutually advantageous way possible.
Collaborative law is the brainchild of Minnesota attorney Stuart Webb. Mr. Webb describes his disillusionment with the traditional litigation method in his groundbreaking book “The Collaborative Way to Divorce” which he co-authored with fellow Minnesota collaborative attorney Ronald Ousky. In the late 1980’s Stu Webb was experiencing what can only be described as burnout with the traditional litigation method. Like many of us he entered the field of family law as a way to help individuals and families, but found that the litigation method was really increasing the stress placed on families during the divorce process. Expensive litigation with its delays, discovery and multiple court hearings drained a family of its resources, working relationships and positive parenting energy. It decreased client’s bank accounts and dignity.
On the verge of leaving behind the practice of law, Stu Webb conceived of a method of engaging in the divorce process which would eliminate the aspects of the litigation method which were not working for families. He developed a model where participants and attorneys would commit solely to the settlement process working as a group of four as opposed to two against two. Unfortunately, the first attempts at collaboration still contained the threat of one party or another being hauled into court and first efforts at committing to settlement broke down. The breakthrough moment for collaborative law came when Stu Webb determined that the only way to keep parties committed to the process was to require settlement counsel to leave the case if parties switch out of the settlement model and into the litigation model. So collaborative law was born, and Stu Webb began devoting his practice to it on January 1, 1990.
The most obvious and immediate benefit of the collaborative process over the litigation process is control. Collaborative law is participant driven. The divorcing parties decide the issues, decide the relevant information, decide the best interests of their children, decide how to divide their belongings and decide how their relationship will work in the future. That’s not to say that the process is easy or without emotions, but it is empowering. While a litigant may feel a momentary rush of power at watching a tough cross examination of his or her spouse, there is no way around the fact that in litigation neither party makes the decisions. A judge – a stranger – makes all the important family decisions about where children will live, when they will see each parent, which party will own certain property and who gets the children on Christmas morning. Although many angry and hurt divorcing individuals will claim out loud that they “want a judge to decide”, handing those decisions away to a person unfamiliar with the family is an uncomfortable place for a divorcing person.
In addition to the empowerment that comes from controlling one’s own destiny, there is a responsibility that accompanies the collaborative process. A collaborative participant must listen to the hopes, fears and interests of the other spouse and must be able to express his or her own hopes, fears and interests. Sitting down at a table together makes participants look at and listen to each other. It contains a responsibility to acknowledge and account for the issues important to each. Because the focus is not on personal victory, but on mutually advantageous solutions, there is a responsibility to make sure everyone comes out of the process with dignity and life intact.
There can be little doubt that the collaborative process with its information sharing and group meetings is far less expensive than traditional litigation. Too often litigation decimates the family finances to the point where the bulk of divisible resources end up paid to attorneys for discovery, trial preparation and multiple hearings. The natural distrust between parties that accompanies the litigation process often leads to duplication of efforts (two experts value the home or business and then testify in court). The streamlined nature of collaborative law eliminates the costly duplication of efforts and eliminates some of the distrust involved. Experts are still involved in the process when needed, but the selection and payment are a matter of discussion and agreement.
By agreement, what happens in a collaborative four-way meeting stays in that meeting. Collaborative law provides a confidential space for the crafting of settlement solutions. Much like mediation, neither party can use the settlement discussions or the proposed solutions against the other party in a litigation setting. While parties tend to advocate their “best day in court” when before a judge, they can work toward the best solution for the whole family in a collaborative meeting without fear that their willingness to give will be seen by the court as a concession.
The reality is that long after lawyers are gone and the judge has ruled, litigants must go on with their lives, many times in close contact with their ex spouse. The parenting relationship continues even when the marital relationship is ended. Litigation has the potential to do long term damage to the future working relationships of parents. A mutually crafted solution arising from a collaborative law case is much more likely to lay the groundwork for future positive communications.