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| This is a form of dispute resolution which removes the "win at all costs" approach from the divorce process. Collaboration means to cooperate with another person for the same goal. It can also mean cooperation with "the enemy." Collaborative Family Law (CFL) combines these two meanings into a contractual process designed to help spouses or parners facing the trauma of separation and divorce resolve their differences without adversarial litigation. |
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| CFL participants agree in a written contract to engage in honest, blameless, face to face communication with each other during structured four way meetings with their lawyers. Everyone gets a chance to describe the situation, to share information and to develop options to resolve their problems. Using those options, participants work together to reach an outcome that best serves them and their family. |
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| The CFL process is voluntary. Settlement is reached only with the agreement of both parties. Such information as is necessary to make a sensible decision and engage in reasonable discussion is exchanged voluntarily and openly, avoiding the cost of formal discovery. |
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| In CFL, each participant has his or her own lawyer. The lawyers commit, in a written contract, to help the spouses or partners communicate with each other openly, effectively, and in good faith. Each lawyer commits, again in writing, to represent his or her client only through the CFL process. Neither lawyer will represent his or her client in court against the other party. As a consequence of this commitment, the role of the participants' lawyer is different than in the normal adversarial family law case. |
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| Not every lawyer will want or be able to practice collaborative law. Not every case will be appropriate for collaborative law, nor will every client be interested in avoiding the adversarial contest. For many lawyers, however, the adversarial experience has led to a belief that the commitment of time, energy, and money to an adversarial case often does not achieve an outcome which provides a cost effective or even a good solution to their clients’ problems. Similarly, many consumers of legal services are looking for experienced legal counsel and skilled advocacy but do not want litigation. For these lawyers and these clients, collaborative law is an excellent option. |
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| Lawyers participating in the Collaborative Law Center have agreed to act as mentors for each other to assist in reviewing problem cases or situations. Additionally, collaborative lawyers can agree to employ experts to advise both sides as to disputed facts or law. Finally, collaborative lawyers and parties can hire a mediator or an arbitrator at any time. |
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| Nothing in the participation agreement precludes a party from terminating the collaborative law process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel. Of course, the other side also will be trading their collaborative lawyer for a litigator. |
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| The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed. Thus, all participants are equally and fully invested in finding the solutions to all problems. More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to, ceases to be a viable tactic. |
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| No. The informal good faith question/good faith answer approach is not intended to require any party to disclose information that has not been requested. In the collaborative law process, the goal is to provide the parties with the information they believe they need to resolve their dispute no more, no less. Thus, by instituting the good faith question/good faith answer approach, the Triangle Collaborative Family Law Association’s participation agreement places the burden on the party seeking information to specify what information he/she, in good faith, will need to resolve the dispute without litigation. |
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| Unless otherwise agreed, by signing the participation agreement, the collaborative lawyer and his/her client agree to provide good faith responses to any good faith questions or requests for information by the other party. In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues.Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a collaborative lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context. |
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| While the participation agreement prohibits threatening litigation, the lawyer’s advice to his or her client as to the strengths and merits of his or her claim will always include an assessment of the likely outcome if the case had to be litigated. Consideration of the law and one’s legal rights is always appropriate in analyzing what a fair and appropriate outcome in a collaborative process might be. Along with this assessment, of course, will be consideration of all of the costs and risks of litigation. Bottom line: the client can choose what is important to him or her even if that doesn't square with what would happen in court. This is the essence of a client-centered approach. |
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How is Collaborative Family Law different? Compare the Collaborative Family Law process and going through court:
| Process |
CFL |
Court |
| Who makes decisions? |
Participants |
Judge |
| Procedure |
established by contract between participants |
formal and complicated rules |
| Cost to Participants |
Moderate |
Substantial |
| Publicity |
Private |
Public |
| Relations between Parties |
Cooperative |
Adversarial |
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Is the collaborative process right for me?
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Are you willing to commit your energy toward creative problem-solving rather than finger-pointing and revenge?
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Do you want to try to avoid the significant legal fees associated with litigation?
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Do you want to try to avoid the stress and public embarrassment of going to court?
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Do you recognize that if you are parents, your relationship with each other will not end with divorce?
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Do you want to solve your own problems rather than letting a stranger do that for you?
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Do you value a negotiated, creative settlement that meets your needs and your children's needs now and in the future?
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Do you want to have your interests and concerns heard and respected by your partner and are you willing to hear his/her interests and concerns and treat them with respect?
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If so, consider collaborative law, an alternative way of resolving your conflict.
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