What is Collaborative Practice?
Collaborative Practice is a new way for a family with a dispute – whether a divorce or a fight over an estate – 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 Collaboratively trained lawyers are always a part of Collaboration, some models provide child specialists, elder specialists, financial specialists, communication/ family systems 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. 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 dispute resolution 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 court 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 is the difference between Collaborative and Mediation?
In mediation, there is one “neutral” third party who helps the disputing parties try to settle their case. The mediator, who may or may not be a lawyer, 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 negotiation as circumstances and budgets allow.
Collaborative Practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to settlement as the sole agenda. Each client has quality legal advice and advocacy built in at all times during the process. It is the job of the lawyers to work with their own clients and one another to assure that the process stays balanced, positive and productive.
What is the “Collaborative Team Model”?
The Collaborative team model is an interdisciplinary team approach to dispute resolution, characterized by the three separate disciplines of law, mental health and financial professionals working interactively as co-equals to help families resolve their dispute. 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 an adversarial court process.
Team members are selected by the clients at the beginning of the case. The team is ideally made up of two or more collaborative lawyers, one for each party in interest (or side), one or two coaches, a child or elder specialist who represents the voice of the child(ren) or elder, and one neutral financial specialist. A key element of the team approach is that the couple can enter into the Collaborative Divorce process through any “door.” A couple, for example, might first contact a Collaborative 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.
What is the difference between Collaborative Practice and conventional dispute resolution?
- In a conventional divorce: one spouse sues the other for divorce and sets in motion a series of legal steps. These usually 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. Moreover, the lack of transparency in information sharing creates an atmosphere of distrust, making a lasting solution less likely.
- In a typical estate dispute: Collaborative Practice, by definition, is a non-adversarial approach to dispute resolution. The parties—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 death of a family member and promote healing in the family.
What does Collaborative Practice do to minimize the hostility often present in conventional conflict resolution?
Collaborative Practice is guided by a very important principle: respect. By setting a respectful tone, Collaborative Practice professionals encourage the parties 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.
How does Collaborative Practice actually work?
When a couple decides to pursue a Collaborative Practice resolution, they each hire Collaborative Practice lawyers. All of the parties agree in writing not to go to court. Then, the parties meet both privately with their lawyers and in face-to-face discussions with the whole team. 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 family members and their counselors are intended to produce an honest exchange of information and expression of needs and expectations. The well-being of any children is emphasized. Mutual problem-solving by all the parties leads to the final dispute resolution.
Is Collaborative Practice a faster way to resolve a conflict?
Individual circumstances determine how quickly any resolution process proceeds. However, Collaborative Practice can dispute resolution. 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 more conventional methods. This does not mean that the dispute will be resolved more quickly – that depends on the parties.
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.
- Estate disputes resolved in litigation do not take into consideration the long term effects of the particular settlement on each of the parties. Collaboration allows us to demonstrate the projectable effect of any particular settlement to help the parties understand the benefits or lack of benefits the settlement offers them.