By Matthew LaFontaine, CFCC Student Fellow 2014-2015
Collaborative family law is a non-traditional type of dispute resolution that focuses on the unification of the parties in an efficient and therapeutic manner. Unlike the traditional litigation process, collaborative law negotiations occur outside the courtroom and commit to cooperation and honesty. This commitment to transparent communication encourages parties to work together toward a mutually agreeable settlement.
The traditional collaborative law model consists of an attorney for each client, who agree to work together with the parties toward a single goal of reaching a fair settlement. Furthermore, each attorney can consult experts, such as a child or financial specialist, to further advance the transparency of the negotiations.
Unlike mediation, each client’s lawyer is present during settlement and can provide legal advice during face to face negotiations. The term “fair” is used because both parties must agree before a settlement is reached. Consequently, parties are more satisfied with their decisions because they are in control and are not solely relying on a judge’s interpretation of their family’s dispute.
Secondly, unlike most litigation, collaborative law takes into account the present and future needs of the clients. Here, clients can schedule meetings without waiting for court dates, which often can require long waits before hearings. This delay in litigation can create new issues for the litigants.
Moreover, unlike other settlements, which can occur under the threat of litigation, collaborative law eliminates the adversarial element by requiring both attorneys to withdraw from representation if an agreement is not reached. This encourages each party to disclose privileged information, which cannot be used during any necessary litigation, in a setting which preserves the privacy of each party. This privacy element is often key to restoring and keeping communications open in family disputes. Many attorneys, however, believe this requirement to withdraw is a barrier to the widespread practice of collaborative law. Withdrawal of representation and requiring parties to hire new attorneys causes inflated legal costs and eliminates the lawyers’ familiarity with the case.
In summary, one must remember that collaborative law is only one method to resolve family legal disputes and may not be the correct approach for everyone. This is especially true in cases involving domestic violence, as these often require a resolution by a judicial officer.