When you need a
divorce, not a war, try
COLLABORATIVE LAW
Collaborative Law is the newest form of alternate
dispute resolution in Illinois. It
originated in Minnesota in 1990 and is currently being used in a majority of
the states. It is especially popular in
Medicine Hat in Alberta, Canada. It was
introduced in Medicine Hat in 2000 and is now being used extensively by the
family law attorneys there. The effect
of such widespread use of this process has been to virtually shut down the family law courts in Medicine Hat,
which were previously operated on a daily basis and are now only used for the few cases that are not appropriate
for Collaborative Law.
Collaborative Law is growing in
Illinois. The Collaborative Law
Institute of Illinois was founded in the summer of 2002. The Institute is training new members every
fall and word of this method of divorce is spreading.
In a Collaborative Law divorce, the
couple meets individually with his or
her attorney to learn their legal rights and to be taught how to behave
collaboratively during the sessions.
The attorneys then meet to discuss any problematic areas and how best to
proceed. Next, the attorneys and the
couple start meeting together for sessions that run approximately 1 ˝
hours. During the first session, the
participation agreement is read and signed.
In that agreement, all four people agree that going to court or
threatening to go to court will not be part of the process. The agreement calls for the attorneys to
withdraw from the case if that happens.
The divorce case is usually not even filed until settlement has been
reached, at which time the attorneys may bring the case into court for an
uncontested prove-up. The courts will
not be used to litigate issues, however, and if the case cannot be settled
collaboratively, the attorneys are out of a job. The couple is then referred out to trial attorneys. Encouraging hostility between the husband
and wife will not line the Collaborative Law attorney’s pocket. The only job of the Collaborative Law
attorney is to settle the case, and they work very hard at that job.
Mediation techniques are used in
the practice of collaborative law. The
husband and wife are encouraged to generate options instead of looking at the
problems in a win/lose framework. The
attorneys do not verbally attack the other spouse as is, unfortunately, often
the case in traditional adversarial divorce.
The attorneys and the husband and wife all work together towards solving
the problems.
The
primary differences between mediation and collaborative law are that the
collaborative lawyer represents his or her client and that the lawyer can
prepare all the documents and bring the case to court on the day of the
prove-up (the court date where the marital settlement agreement and final
divorce judgment are entered). A
mediator does not represent either the wife or husband and cannot bring the
case into court, even if that mediator is also an attorney. In addition, two attorneys are in the
sessions with the couple in collaborative law, whereas in mediation usually
only one neutral mediator is with the couple.
The traditional adversarial divorce
averages eighteen months. It sometimes
takes much longer. Collaborative Law
cases are usually considerably faster. The sessions are typically scheduled on
a regular basis so that case progress is not stalled. In addition, there is direct communication among all parties,
instead of letters going back and forth between attorneys, perhaps sitting on
desks waiting to be typed and getting held up in the mail. Everyone can sit together and brainstorm
ideas, which often leads to other ideas, which usually leads to
settlement. Sometimes financial planners
trained in the collaborative law process are brought into the negotiations to
lend financial expertise, or counselors (divorce coaches) trained in the
collaborative law process are brought in to help with emotional issues. This can also help move the case forward and
generate more ideas if the case is stalling.
Collaborative Law is typically less
expensive than adversarial divorce.
When adversarial cases are filed, motions and court hearings often
follow. For example, hearings are often
held to get child support and custody orders in place, or to determine how the
bills will be paid while the divorce is pending. In Collaborative Law, these issues are discussed in
sessions. The attorneys are present and
involved, not sitting in a court room waiting for the case to be called while
the client is being billed. In
addition, in an adversarial case, the court has status calls where the
attorneys are required to attend court to inform the court about the status of
the case, while the client is being billed.
Often in adversarial cases the client
will not even know the status of his or her own case without calling the
attorney. In Collaborative Law, the
client will know the status of the case because the client is present at the sessions, and the attorneys
are not being required to report to the court because the case is not in the
court system until the end. The biggest
money saver is the avoidance of a trial. Trials are extremely labor intensive
for the attorney, and naturally the more hours the attorney needs to work to
prepare for the trial and then attend the trial, the more the client is
charged.
Not every case is appropriate for
Collaborative Law. If one of the
spouses is too intimidated to speak in front of the other spouse because of
domestic violence, they should seek a traditional divorce. It also is not appropriate in a situation
where the spouses are not willing to be honest or cooperative. It is necessary for both spouses to be
willing to use the Collaborative Law process.
It isn’t necessary for a divorcing couple to agree on everything in
order to proceed in Collaborative Law.
In fact, if the couple does already agree on everything, the case is an
uncontested case. Collaborative Law is
for couples who do not have an agreement on everything, but who are willing to
try to keep their relationship amicable and be fair with one another. It is especially appropriate for couples
who do not want to be tied up in the court system for years. It is especially appropriate for couples who
do not want to use the assets they will need to establish separate households,
or who do not want to use the children’s college money, to fight in court. It
is especially appropriate for couples with children who will be continuing to
see each other as they parent those children, attend their special events at the same time, speak to their teachers,
and sit at their graduations and weddings.