When you need a divorce, not a war
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 ½ 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.
The Collaborative Law Institute of Illinois is a state wide organization of collaborative professionals. The members have met the institute's requirements for the underlying education and certification or licensing in their respective fields, as well as mediation training, collaborative training and continuing education credits. Some professionals use the word "collaborative" liberally, and have not met the standards of the institute or taken any training in this area. Make sure your professional has met the high standards of the institute. For more information see www.collablawil.org.
When one door of happiness closes, another opens; but often we look so long at the closed door that we do not see the one which has been opened for us.