Different families require different approaches to transition. At the heart of the collaborative approach is the agreement between the spouses and their attorneys that they will pursue the highest long-term interests of the parties and the family as a whole. This is accomplished through a written agreement, enforceable between the parties, not to pursue litigation during the pendency of the collaborative process, which consists of a series of meetings focused on mutual problem-solving. In contrast with the usual “adversarial” approach common in litigation, the lawyers are committed to working together to achieve the legitimate interests of both spouses in a fair and non-adversarial way.
In collaborative practice, the idea of “winning” is simplified: when both spouses work together to achieve a resolution which meets their needs (but not necessarily their wants), protects their children, and maintains their integrity, both sides win.
Collaborative negotiation is a growing area of practice within the field of family law, but only those who have undergone specific collaborative practice true collaborative law. It represents the cutting edge of divorce practice, and offers separating spouses the opportunity to work through their divorce in the most respectful, least destructive way. There are several important aspects to the collaborative divorce, the most important of which are the following:
Agreement not to litigate: In order to truly work collaboratively, each spouse and their lawyers agree in writing to not seek intervention from the court during the period of negotiation.
Open communication: In a litigated divorce, spouses sometimes no longer communicate with each other, and instead pay lawyers to do the talking for them. The results vary widely depending on the lawyers’ ability to communicate accurately and to not impose their own agenda on the case. Nothing is worse than the spectacle of two lawyers engaging in spiraling conflict with each other, for which the spouses must pay. When working collaboratively, all settlement negotiations take place with both spouses and their lawyers in the same room. This maximizes meaningful communication.
Team effort: The collaborative divorce is a joint project of both spouses, their lawyers, a collaborative facilitator and a neutral financial specialist. Each lawyer still has the obligation to advise his or her client of relevant law, help the client gather all necessary information, and advise the client regarding divorce issues the client would not be expected to know. However, when the collaborative group meets in negotiation, the focus is on working together to reach agreements which meet the legitimate needs of each spouse. This is in contrast to the approach in many litigated divorces, where even in settlement negotiations an adversarial, contestive, approach is used. When working collaboratively, the team works to find solutions that do the least harm to, and generate the most benefits for, each party.
Realism: Collaboration is not a panacea, in which all of the difficult emotions, financial and child issues attendant to a divorce magically disappear. Instead, it is a highly realistic approach to all of the issues in the divorce. A litigated divorce tends to focus on legal issues alone, leaving aside the broader impact divorce has on a person. Skilled collaborators will recognize that people in the end want more from their divorce than simply taking as much money, or as much of the children’s time, as possible. People also need a sense of integrity, of closure, and recognition that divorce is a beginning as well as an end.
Collaborative Facilitator: Each collaborative team includes a facilitator, who sits primarily in the role of mediator. This professional brings value to the team by helping to keep meetings organized, providing the parties with an outlet to discuss emotion-laden subjects and coaching the parties on their communications. This professional typically is a mental health professional or attorney.
Neutral Financial Professional: This professional assists the parties in completing the financial disclosures necessary for negotiation and resolution of the divorce. Depending on the situation, the financial professional may also assist in determining the value of a business or the potential effects of various financial settlement possibilities. Efficiency in the process is enhanced by this professional’s handling of financial analysis. The financial professional is typically a Certified Public Accountant (CPA) or Certified Divorce Financial Planner (CDFP).
Training: Lawyers need training to practice collaborative law effectively. Our firm has engaged in this training, and is ready to help you collaboratively resolve your divorce. As a member of the Colorado Collaborative Divorce Professionals and the Collaborative Professionals of Boulder County, Daryl James has both participated in and taught at many collaborative trainings.
COLLABORATIVE LAW LINKS
COLLABORATIVE LAW MATERIALS
“COLLABORATIVE FAMILY LAW – ALIVE AND WELL IN BOULDER COUNTY” This article describing the collaborative law process by Daryl James was first published in the Boulder County Bar newletter in 2004.
“PRINCIPLES AND GUIDELINES FOR THE PRACTICE OF COLLABORATIVE LAW” These principles and guidelines set out the commitments made by parties to the collaborative law process.
“EMPIRICAL BASES SUPPORTING COLLABORATIVE PRACTICE” Daryl James explores the empirical basis of collaborative family law practice.
“PERSUASION UNDER THE RADAR: PSYCHOLOGICAL INFLUENCE DURING NEGOTIATION AND ITS EFFECT ON COLLABORATION.” Daryl explores the effect of psychological influence in negotiation and collaboration.