The Law Office of Janice Salvadore

Professional Legal Services and Trusted Advice

HomeAbout UsGeneral Law PracticeReal Estate LawJuvenile Defense LawDivorce LawCollaborative Law ProcessReal Estate Law -ServicesFAQ- DivorceContact UsResources / Links

 

What is Collaborative Law Practice?

Collaborative Law Practice is a dispute resolution process that provides an alternative to conventional litigation. Both parties are represented by counsel, but the parties and their attorneys agree, in writing, to attempt to settle the matter without litigation or even the threat of litigation. Both parties also promise to take a reasoned stand on every issue, to keep discovery informal and cooperative, to retain experts jointly if they are needed, and to negotiate in good faith. Collaborative Law Practice relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well-being of the parties. Although Collaborative Law Practice has been used primarily in divorces and other family matters, it can be used in business, employment, probate, and other non-family matters.

 

 

How does Collaborative Law Practice work?

The process of settlement involves each client meeting privately with his or her lawyer and in "four-way" settlement meetings where both clients and both lawyers are present. In some instances experts, such as divorce coaches and child and financial specialists, may join the process at the client’s request. Mutual problem-solving and interest-based negotiation (as opposed to adversarial, positional negotiation) by all the parties leads to agreement. However, if a settlement is not reached and this causes either party to seek intervention from a court, both attorneys must withdraw from representation.

 

 

What is the difference between Collaborative Law Practice and traditional divorce proceedings?

In a conventional divorce, one spouse files a complaint for divorce in Court and sets in motion a series of legal steps, such as pretrial discovery, the filing of motions, and a pretrial conference. Although the vast majority of cases filed in Court eventually are settled by agreement (as opposed to a trial), spouses going through a conventional divorce generally come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children. Collaborative Law Practice, by definition, is a non-adversarial approach to divorce, not only because the negotiation process takes place without the antagonism of courtroom conflict but also because they parties and the lawyers negotiate collaboratively.

 

 

Why might I want a team of people helping me?

 

Collaborative Law Practice allows both parties access to a variety of experts, in addition to lawyers. Mental health professionals can act as coaches for the parties, child specialists can give the children a voice in the process, and financial specialists may act as neutrals to help the parties assess the financial impact of their settlement options. These, and other resources, are recommended based upon the circumstances of each case.

 

What are the pros and cons of Collaborative Law Practice?

 

Collaborative Law Practice allows parties to negotiate with a lawyer at their side but without the imminent risk of the case proceeding to Court. Furthermore, on average, collaborative law cases tend to be quicker and less expensive for both parties than cases handled without collaborative law, however, this may not be true in every case. Additionally, if negotiations fail, each client will be put to the additional expense of hiring new counsel. In divorce cases, filing an action in Court creates an automatic restraining order on the parties’ assets, which is not present in a Collaborative Law Practice case. However, in collaborative cases, the parties can create by agreement a freeze on their assets. One other issue is timing: a court process ordinarily creates a specific timetable for resolution by setting a trial date. Collaborative Law Practice allows the parties to control the timing of the process but, in cases where one party wants to move the process along and the other does not, problems may arise if the parties do not make a commitment to proceed in a timely fashion.

In many civil law matters, settlement can be reached without any parties needing to go to court at all.

If I choose Collaborative Law Practice, will my rights be protected?

Collaborative Law Practice mandates that each party's attorney has an absolute ethical duty to represent solely his or her client's interests. The process does not allow an attorney to be anything less than 100% on the side of his or her client. The Collaborative Law Process recognizes, however, that each party has an interest in resolution and that part of the process is to advance that interest on behalf of each of the client.

What if I want to quit during the middle of the process?

At any time either party may choose to leave the process and pursue litigation. This will require both parties to hire new counsel.

Will a settlement be fair?

Collaborative Law Practice is designed to empower the clients to fashion agreements that address their unique concerns and produce results more creative than, and superior to, those experienced by clients in the conventional adversarial process. The goal is to enable parties to reach a fair and reasonable settlement that addresses and meets the needs of both parties, rather than, for example, the most aggressive party.

If a settlement is reached, what's the next step?

The next step is for one of the parties' lawyers to draft legal documents to convert their informal agreements into legally binding ones. In a divorce case, this means drafting a divorce agreement that is then submitted to the Court for approval. Collaborative Law Practice lawyers can accompany their clients to an uncontested divorce hearing and assist with the finalization of the matter.

What happens if a settlement is not reached?

If the parties cannot reach settlement with the help of their collaborative lawyers, there may be an exploration of whether they may want to try an alternative way to resolve their matter, for example, mediation, neutral experts, or arbitration. If not, then their collaborative lawyers would withdraw and the parties would proceed to obtain attorneys to prepare the matter for trial.

How does Collaborative Law Practice discourage fighting between parties?

Collaborative professionals are trained to help clients deal with their issues and emotions in joint meetings and conference calls. They understand how to help clients express authentic hopes and needs effectively. They ask questions that keep the conversation focused on mutually acceptable, workable outcomes. Collaborative professionals also model appropriate behavior; instead of confronting others in the room, they establish an atmosphere of mutual respect and ensure that everyone present sustains that respect throughout the process.

What is the difference between Collaborative Law Practice and Mediation?

Both Collaborative Law Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals. In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator does not provide legal representation to either party, and cannot be an advocate for either side. The parties in mediation can have their own separate counsel present at the mediation sessions, or consult with counsel between mediation sessions. In the Collaborative Law process, the clients have their lawyers with them during the negotiation sessions. Although there is no mediator present, the lawyers maintain a commitment to settlement.