Collaborative Family Law
A Less Adversarial Way to Divorce
DSF Family Lawyers John Schuman, Julie Tyas and Kerri Parslow are also “Collaborative Lawyers”. That means that he is trained in another very effective process for resolving issues arising from a marriage breakdown and negotiating a Separation Agreement. That process is called “Collaborative Practice.” The clients, lawyers, and sometimes other professionals (such as divorce coaches, psychologists, child experts or financial advisors) work as a team in a fair and respectful process. (Where the process only involves clients and lawyers, it is sometimes call “Collaborative Family Law.” The goal is to reach solutions for the clients which are mutually acceptable, constructive, and which allow them to move forward with their new lives.
An essential principle of Collaborative negotiations is that the parties want to settle without going to court or even threatening court. Before negotiations can begin, both parties and their lawyers sign a “Participation Agreement” that commits them to this principle. If one party does decide to resort to court, both lawyers must resign from the case. This agreement ensures that everyone works hard to reach a settlement acceptable to both spouses.
There are many benefits of a Collaborative approach. The issues are resolved sooner and often less expensively. The parties are in charge, rather than judges or lawyers. The parties customize their own solution, so they can be come to more creative resolutions than a court can order. Those solutions can also be more tailored to the parties’ situation than court orders. It is a private process, so details are out of the public record.
An important aspect of Collaborative Practice is that the parties commit to working out the issues between them, using professionals as needed. They devote themselves to keep working on a resolution until they reach one. While this process can still be difficult, the success rate in reaching an agreement is very high. Since the parties do agree in the end, they are often happier with the outcome, and less angry at the other party than if they battle out the issues in court or at an arbitration.
The Collaborative Practice process is often thought to be better for the children because the parties are committed to working together, rather that fighting each other, and they come to an agreement that is tailored for the kids, rather than having the court impose a resolution. Where the parties need assistance to determine what solution is best for the kids, the Collaborative Practice process has them involve “family professionals”, who are social workers, psychologists or other experts on children and families, to advise on the best solution for the family.
An important difference between Collaborative Practice and court or arbitration is that the parties are encouraged to determine their interests and the interests of the other party rather than focusing on legal positions. With this focus, parties often learn that each of them can get what they really want while still allowing the other party to get what he or she really wants. It is not the case that the “winner” gets what he or she wants and the “loser” does not, or both parties get a result that they do not want, which can be the result in court or an arbitration.
However, the Collaborative Practice process does not work for everyone. It will not work where both parties will not commit to working out an agreement. It will also not work where one or both parties are acting in bad faith, being dishonest, or concealing important facts or information. Collaborative Practice requires that the parties commit themselves to reaching an agreement, and using whatever professionals and tools they need to reach an agreement, as opposed to asking a judge or arbitrator to impose a resolution.
Parties are often more satisfied after reaching an agreement through Collaborative Practice then parties who have a resolution imposed by a judge, where neither party may get what they want. If the parties are able to commit themselves to the process and acting in good faith, the Collaborative Practice process is one that separated couples should consider.
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