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Collaborative Law is an innovative approach
for divorcing couples who wish to
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Avoid the courtroom
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Preserve financial resources
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Put the needs of their children first
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Reduce conflict
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Maintain control of the decision-making process
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Make a long-lasting settlement that
meets the needs and concerns of both spouses and their children
WHY COLLABORATIVE LAW?
Problems with the Legal System
While practicing divorce law for more than a quarter
century, Arnold Cribari found himself more and more dismayed
with the inappropriateness of the court system for dissolving
marriages.
Lawyers are trained in the adversarial
system of jurisprudence, which is a win-lose, zero sum game.
Even the out-of-court negotiations in our legal system are based
on the threat of courtroom litigation as an incentive to come to
an agreement.
The adversarial approach escalates the
conflict between the divorcing spouses and often exacerbates
their anger and distrust. A protracted, hostile process causes
emotional damage to the spouses, and especially to their
children. Financial resources are depleted.
If the negotiations in the
adversarial system break down,
power and decision-making is transferred from
the divorcing spouses to a judge.
Why not mediation?
Mediation is a good process to settle a
divorce only when all of the following circumstances exist:
1.
there is a relatively equal balance of power between the
spouses
2.
they share some important common values, and
3.
they are both capable of advocating for themselves
In mediation, the two parties go to a
neutral mediator who helps them settle their disputes. If and
when a settlement is reached, the mediator advises each spouse
to have the settlement reviewed by their own separate attorney
before any formal agreement is executed.
Collaborative Law: The Third Way
Divorce isn't just about money and
property. It is about restructuring a family and
encompasses emotional, financial, legal and
parenting issues, usually over a long period of
time. The collaborative process addresses all of
these issues, and optimizes a divorcing couple's
chances to make a divorce settlement tailored to
their needs for now and years to come.
In 1990, a Minneapolis attorney, Stuart
Webb, developed Collaborative Law as a third alternative for
divorcing couples. A group of lawyers are now pioneering this
approach in the greater New York City area.
Collaborative Law is actually a form of
mediation, but both spouses retain their own attorneys who are
trained in the collaborative process. This way, each party
has the protection and support of his/her own lawyer, but
the negotiations are based on a cooperative model rather than an
adversarial one. The lawyers are focused on problem solving
rather than winning.
The lawyers help the parties
identify their important needs and concerns, and
those of their children (if there are children
involved). Once these needs and concerns are
fully understood and the applicable law is
explained, then settlement options are proposed
and considered. The parties agree to follow
Ground Rules so negotiations remain
respectful. Collaborative law works
best when both attorneys have extensive
training in both collaborative law and
mediation. This is because the
collaborative process is poles apart
from the adversarial process, which is
often based on threats, power, and a
blind adherence to the law, as commonly
taught in law schools and practiced by
traditional divorce lawyers. Therefore, for Collaborative Divorce to
work, it is essential that the two attorneys
have professional training in collaborative law and mediation.
At the outset of the collaborative process,
both spouses and attorneys commit to working out an out-of-court
settlement that is fair to both parties. This preserves the
divorcing couple’s power and privacy, keeping the information
and decisions in their hands, rather than in the hands of the
court system.
A unique feature of collaborative law is
that an initial agreement is made that – if litigation or court
becomes necessary – then the collaborative attorneys will
withdraw and the parties will obtain new lawyers to serve as
trial counsel. This agreement to withdraw can be very beneficial to
the divorcing couple because it ensures that the collaborative
attorneys cannot financially benefit from any litigation and
trial; their sole motivation is to help the couple reach a good
out-of-court settlement.
Having helped a number of clients
complete their divorces with
"win-win"
results through the
collaborative model, Arnold
is convinced that – in the not too distant future – the majority
of divorces will be handled collaboratively. Even spouses with a
great deal of anger and mistrust have been able to reach
mutually beneficial settlements thanks to the skill and creative
problem solving of the collaborative attorneys.
FAQsMany lawyers say they settle most of their cases. How is Collaborative Law
different from cases settled the usual way?
Most conventional family law matters are
settled "on the courthouse steps", at least figuratively. By
that time, much emotional damage has occurred and financial
resources have been drained. The process is largely driven by
intimidation and fear. In contrast, the Collaborative Law
process facilitates respectful problem solving. It is almost
always quicker,
less costly, more individualized, and less stressful than
litigation.
What happens if one side is dishonest
in some way, abusing the Collaborative process to gain an unfair
advantage?
This could happen. (It also can and does
happen in conventional legal representation.) What is different
about Collaborative Law is that the collaborative law agreement
requires the lawyer to withdraw if the client is continually
dishonest or abusive. For instance, if documents are altered or
withheld, or if a client is deliberately delaying matters for
economic or other gain, the lawyers have promised in advance
that they will withdraw, discontinuing representation of the
client.
If the
negotiations become extremely heated,
can Collaborative Law still work?
Absolutely. Collaborative lawyers are
trained in communication strategies that
help clients articulate the underlying
needs behind their anger. Moreover,
collaborative lawyers sometimes
recommend bringing mental health
professionals into the process to serve
as "coaches" so that communication is
more respectful and positive during
settlement conferences.
Articles on collaborative Law :
For further information, click on to
"Collaborative
Law : Divorce lawyer as Peacemaker", by
Arnold D. Cribari Esq. published in the
Spring/Summer 2006 edition of the Westchester Bar
Journal.
For an in depth discussion about the differences
between mediation, collaborative law and
litigation, read
"Divorce: To Mediate, Collaborate or Litigate -
That is the Question," by Arnold D. Cribari,
Esq. and Melissa Goodstein, Esq.
Also, click on to "The
Struggle to Preserve Collaborative Law Benefits
when Litigating a Divorce" by Arnold D.
Cribari, Esq. published in the Spring/Summer
2007 issue of the Westchester Bar Journal. |
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" I tell people you can choose collaborative or
spend $100,000 and a lot of sleepless nights on a
traditional divorce because collaborative practice
expedites the process. The normal ritual is to demonize
the other party. Collaborative builds trust and promotes
closure.
- Collaborative Client |
