• What is Collaborative Law?

    Collaborative law is one of the four major areas of alternative dispute resolution. It has a primary function as a way to facilitate familial disputes such as divorce or separations. The law is a recent addition to alternative dispute resolution models. Each party involved has their own separate, trained legal counsel, who acts on their behalf to help settle the dispute. All parties must agree to cooperate fairly, honestly, and in good faith in order to reach the best resolution possible. This helps the parties involved find a situation in which both come out as “winners.” Also, the promise to reach an agreement means that the parties waive their right to go to court for a settlement during the collaborative process. If one party refuses to compromise or threatens in-court action, the collaborative process is then deemed to be terminated.

    Each party involved in the collaborative Law process has the opportunity of having an equally skilled and knowledgeable attorney representing them. This allows the parties involved to feel more comfortable with the process. Even if one is seemingly disadvantaged in some way, whether it is financially or emotionally, the presence of an attorney can help each side feel confident in their negotiating. The parties must also sign an agreement that each will disclose all relevant information, fully and honestly. This again aids the negotiation process because both parties then operate under the assumption that the other is being completely honest.

    Benefits resulting from the use of the collaborative law process are numerous. Like other forms of alternative dispute resolution, parties have the opportunity to participate in a more open and civilized forum to resolve their disputes. Civilized discussions can help facilitate the maintenance of a good relationship between the parties in the long-term. This is especially beneficial because the maintenance of a good relationship between parents during a separation or divorce can help in raising the child in a non-divisive environment. The litigation process can make the parents act more like enemies and can place their children in an awful position. Protecting children from having to “choose a side” or suffer from their parents being resentful is a major reason collaborative law was created. An additional benefit is that confidentiality is maintained during the process. Financial documents and other information that one partner may be afraid of disclosing to the public, can be kept private between the parties. Also, when partners or parents place themselves within the collaborative law process, they are generally willing to compromise and place their family values above their desire for monetary or possessory gain. This means that the partners are not completely acting out of self-interest.

    Collaborative law, like other alternative dispute resolution models, is a quicker approach to dispute resolution. The negotiations that take place are to be between respectful parties who want to make the separation process easier and beneficial for all. Each party is allowed to present their own ideas and solutions, thus making the process more satisfying when resolution is reached. Also, each party makes an attempt at collective problem solving in order to avoid litigation. Avoiding litigation will save the parties valuable time and money.

    One final benefit of collaborative law is that the lawyers that are hired by each party are supposed to be dedicated to the resolution of the dispute without the added notion that they need to “beat” the other party. The lawyers represent their client’s interest, but also represent the interests of the parties as a whole. The entire idea of the collaborative process is to maintain the relationship and find a “win-win” solution. They expect their clients to act in good faith and the opposing counsels clients to act equally in good faith. This mutual trust allows for the lawyers to participate as a team, rather than as adversaries.

    However, full and complete honesty does not necessarily always occur. When a party is found to be less than honest during the process, Collaborative law requires the representative counsel to withdraw her client for not participating in full good faith. Participating in collaborative law requires an assumption of honesty. Of course, some people may be better at hiding their dishonesty than others. In situations like this, parties run the risk of being duped and thus being short-changed in an agreement. If the dishonesty has gone undetected, there may be no way for the party who was lied to, to recover. The hope, however, is that with multiple lawyers working towards reaching an agreement, even the slightest dishonesty may be detected.
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