The most helpful facts to know about Collaborative Practice
- What is Collaborative Practice?
- What is “Collaborative Law”?
- What is the difference between Collaborative Law and Mediation?
- What is the “Collaborative Team Model?”
- What is the difference between Collaborative Practice and conventional divorce?
- What does Collaborative Practice do to minimize the hostility often present in divorce?
- How does Collaborative Practice actually work?
- Is Collaborative Practice a faster way to get a divorce?
- How does Collaborative Practice focus on the future?
- How will collaborative divorce lessen the impact on my children and extended family?
- How Do I Start the Collaborative Process?
- Collaborative Estates and Trusts, Is it for me? – Printer friendly .PDF
What is Collaborative Practice?
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 communications 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 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 “Collaborative Law”?
Collaborative Law is the legal component of Collaborative Practice. It is a dispute resolution model in which both parties to a dispute retain separate, specially-trained lawyers whose job is to provide education, legal advice and advocacy to help them settle the dispute. If the lawyers do not succeed in helping the clients resolve the problem, the lawyers are must withdraw and can never represent either client against the other. All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions to the legitimate needs of both parties. No one may go to court or even threaten to do so, and if that should occur, the Collaborative Law process terminates and both lawyers are disqualified from any further involvement in the case.
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What is the difference between Collaborative Law 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.
Collaborative Law 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.
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What is the Collaborative Team Model?
The collaborative team model (first developed as Collaborative Divorce SM) is an interdisciplinary team approach to divorce, characterized by the three separate disciplines of law, mental health and financial working interactively as co-equals to help families through their divorce.
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 Collaborative Divorce 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 the complex issues of divorce. Working together, these Collaborative Professionals help divorcing couples achieve an outcome that would not be possible without this cooperative team involvement.
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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.
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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.
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How does Collaborative Practice actually work?
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, the spouses meet both privately with their lawyers and 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 counselors 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.
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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.
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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.
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How will collaborative divorce lessen the impact on my children and extended family?
Collaborative practice is committed to supporting children and their parents through painful emotional challenges often experienced during a divorce or break up. We believe that children should be at the center but not in the middle of the issues their parents need to resolve. From research and our own experience, we have learned that the most devastating impacts of parental break-up on children occur when:
- conflict between parents remains at a high level during and after the divorce/break-up
- a parent goes away or becomes unavailable to a child, and the critical attachment between the parent and child is broken
- children become emotional caretakers of one or both parents
For the sake of children, a major goal of the Collaborative process is to ensure that traumatic outcomes with long-lasting negative impacts on children do not occur.
Collaborative practice provides children with advocacy, support and a voice in the process based on the idea that children deserve the best safe parenting they can get from both parents. To that end, neutral child specialists use a child-inclusive process to help parents create developmentally responsive parenting plans designed to meet the needs of children as they grow. Neutral child specialists also assist parents to create a “We Statement” to explain the break up, divorce or getting unmarried to their children in a safe, supportive and authentic way as the family begins this difficult journey.
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How Do I Start the Collaborative Process?
Become Educated About the Collaborative Process.
Interview a Collaborative Professional. Some people are most concerned about the impact of divorce on their children, some about their finances, and some about their communication. You can learn about the Collaborative process and how it would address those concerns by interviewing, individually or together, any Collaborative professional: an attorney, neutral child specialist, neutral coach or neutral financial specialist.
Introduce Collaborative Practice to Your Spouse or Partner. Collaborative divorce is a voluntary process. It is important for both of you to agree that Collaborative is the best process for you to use to get through your divorce. If your relationship with your partner is cordial, you can give him or her information about the process and the website references. Your partner might be more likely to appreciate the information if it comes from a source other than you. Brainstorm ideas with the Collaborative professional you interview for ways to inform your partner about Collaborative divorce. You know your partner better than anyone. Think about what approach would be most effective in introducing the Collaborative process to your partner.
Assemble Your Team. Once you and your partner have agreed to use the Collaborative process, you will each retain your attorney and meet with him or her prior to a first joint meeting. It is optimal to select and meet with your neutral coach prior to the first joint meeting so that the coach can facilitate this session.
Schedule a First Joint Meeting. At the first joint meeting, meaning, the first meeting in which you meet with your entire Collaborative team, you will sign the Collaborative Participation Agreement, identify your major goals and concerns, and plan the next steps of your process. If you have not already hired a coach, financial specialist, or neutral child specialist, you will make decisions about assembling the rest of your team at this time.
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