Collaborative Family Law is a term given to a relatively new process designed to help divorcing couples come to a mutually acceptable agreement with the assistance of an attorney (one for each party) and one or any number of other allied professionals with special talents, i.e. CPA, tax specialist, financial planner, and mental health professionals to name a few of the most common.
This is something the legal community calls an Alternative Dispute Resolution process as is Arbitration and Mediation. These alternative dispute resolution processes can all be applied to the controversies in family / matrimonial law. Collaborative Family Law is the new kid on the block. It has been in our community for about 8 years as of 2014.
These processes exist on a spectrum from the least costly to the most expensive. The least expensive alternative dispute resolution process is the kitchen table. If a husband and wife sit down at the kitchen table and work out the terms of their marital dissolution it will cost them very little; just enough to buy and fill out a kit of legal papers in addition to some court processing fees. The next least expensive process is mediation. Here the couple hires one neutral party, a mediator, who will give them some guidance in getting everything addressed and to assist them to work through their honest differences. An hourly rate is applied and then typically the agreement may or may not be reviewed by an attorney who will apply their rate. Then the attorney must draft the legal agreement, have the parties sign the document and file it in the County Clerks Office. As you can see, costs are mounting.
When the parties are uneasy about doing all this work with the mediator who is not representing either party they sometimes would like the comfort of knowing that an expert legal person will be at their side during all the negotiations. Until now, the only way of doing that would be to engage a lawyer who would take a sizeable retainer to be the client’s representative and essentially negotiate the agreement for his or her client. This is done under the court’s rules and direction presided over by a judge. Costs mount and mount and because of all the rules and legal processes of the court it can take a very long time, especially if one has significant resources to ferret out.
Collaborative Law utilizes two attorneys but the process is outside of the court system and not subject to those rules and processes. This gives the attorneys more latitude in settling the case and it usually can be done more quickly and of course at less cost. But the real reason Collaborative Law has taken hold is that the lawyers in the court system know all to well that litigating a settlement is a very destructive process to the family. This is because the court system is adversarial in nature. The system is based upon a citizenï¿½s legal rights as established by law. Unfortunately, both parties have the SAME legal rights. So a contest is set up such that each attorney has to prepare a case to argue in front of a judge as to why his or her client is more righteous in his or her claim to the rights at stake. This translates into a contest, and the talents of the lawyers involved (guns) and the amount of available money (ammunition) is utilized to win the case (the war). The children are the refugees of this process.
There are a number of lawyers now who do not want to practice this kind of law anymore, but still want to help people solve their problems more or less amicably. The only way to do this is outside of this adversarial process. They accomplish this by putting in writing that while representing their respective clients, they will never go to court. If they don’t have to go to court, they donï¿½t have to prepare a case (there will be no war and ammunition is not necessary). Therefore, the process is more user friendly, takes less time and is emotionally easier on the clients while the children do better. Everybody is ahead in this model. The downside is that the clients still have to pay for two attorneys and other professionals to help them value assets, etc. Even harder, the parties have to willing come to terms with each other. There is no judge going to solve the problem for them. They have to do it themselves.
As you can see the cost of Collaborative Law is more than that of Mediation, Arbitration and the Kitchen Table, but far less costly than Litigation and far less painful. One of the major difficulties in Collaborative Law is that the lawyer’s skill sets have been honed for battle in the court room. Their talents do not necessarily translate into the collaborative process that is based completely upon a voluntary process because no one can compel anyone to do anything in collaboration. It takes a mutually acceptable agreement reached voluntarily to close the case. Many collaborative attorneys recognize that their skill sets may not be enough to get the job done or even if they think they can, they are not sure the other lawyer can. For this reason they turn to a neutral facilitator with a mental health background to help handle the oft time difficult process of coming to terms. This is the work that Ron Heilmann does in collaborative law. He facilitates the collaborative.
There is one more important point for you to consider. This office provides a mediation service most of the time without the presence of a lawyer. But sometimes either before or during the process the parties would like to do the work themselves in mediation but have the outside assistance of an attorney, too. In these cases we bring a collaborative lawyer into the mediation process to help us all get through the details or terms of the agreement. This is more expensive that plain mediation, but not as expensive a Collaborative Law because we only use the attorneys as needed.
At the outset of the mediation process here at the Mediation Network of Syracuse we explore all these options available together and then you two choose what is best for you. You decide.