Frequently Asked Questions
▸ Is Collaborative Law the best choice for me?
▸ What are the differences between Collaborative Law and mediation?
▸ Why is Collaborative Law such an effective settlement process?
▸ How is Collaborative Law different from “traditional” family law negotiations between divorce attorneys?
▸ How does the cost of Collaborative Law compare with the expense of litigation?
▸ How can I get my spouse to commit to this process?
▸ How do I find a Collaborative Attorney or Allied Professional in Central New York?
Is Collaborative Law the best choice for me?
Collaborative Law is a viable and preferred alternative to adversarial litigation for most families involved in separation or divorce. It is worth considering and implementing if these priorities are important to and genuinely desired by you and your spouse or partner:
- You seek a civilized, respectful resolution of the issues in your family;
- You and your spouse want to successfully co-parent your children and each of you desire the best relationship possible with them;
- You have beliefs that place high value on taking individual responsibility and managing conflicts with honesty and integrity;
- You wish for privacy in your personal affairs and do not want details of your problems made public in the courts;
- You and your partner have mutual friends or extended family in common that you both want to remain connected to;
- You value autonomous decision making and do not want to delegate choices about restructuring your economic and child-rearing arrangements to someone else, like a judge;
- You recognize the restricted range of outcomes generally present in the court system and prefer a more creative and individualized spectrum of options that might indeed be available to you and your spouse;
- You would like to maintain a civilized friendship with your spouse in the future, if possible;
- You understand that positive conflict resolution involves not only achieving your own goals but finding ways to attain the reasonable interests of your partner, too;
- You want to engage the services of professionals with proven expertise in helping to solve financial, legal, parenting, and communication issues; and
- You and your spouse will commit your intelligence and energies toward creative problem solving rather than recrimination or revenge—you’re focused on fixing the problem rather than being fixated on anger and blame.
How is Collaborative Law different from “traditional” family law negotiations between divorce attorneys?
In Collaborative Law:
- All participants engage in an open, honest exchange of information;
- Neither side takes advantage of the miscalculations or mistakes of the other, but instead identifies and corrects them;
- Both parties insulate their children from disputes yet always have their needs and interests as utmost priorities;
- The parties use joint accountants, mental health consultants, appraisers, and other professionals, instead of competing adversarial experts;
- A respectful, creative effort to meet the legitimate needs of both parties replaces tactical bargaining backed by threats of litigation;
- The attorneys must guide the process to settlement or withdraw from further participation, unlike adversarial attorneys, who remain involved whether the case settles or is litigated; and
- There is parity of payment to each attorney so that neither party’s representation is disadvantaged by lack of funds.
Collaborative Attorneys realize the vast differences between a settlement negotiated during the conventional litigation process and one that takes place in the context of an agreement not to—or even threaten to—go to court. Posturing, exaggeration, and secrecy often predominate when lawyers negotiate while having litigation as an option. It is not disputed that the most seasoned and trial-savvy expert witnesses usually affect the outcomes of divorce settlements and law suits. Conventional family law cases are resolved regularly “on the courthouse steps.” By that time, enormous funds have been spent and extensive emotional damage may have been inflicted upon everyone involved. Those settlements are reached under conditions of considerable tension and mounting pressure to avoid the fate of a judge. Moreover, conventional settlements are shaped largely by what the attorneys believe a court is likely to do.
Nothing could be more dissimilar from what occurs in a typical Collaborative Law case. The process is geared from the outset to make it possible for creative, respectful, private problem solving to occur. Clients report over and over again how their families were the center of the process, and their advocates—Collaborative Attorneys, Facilitators, Coaches, and Valuators—remained committed to helping the couples find their own mutual outcomes without the specter of what a court might determine.
What are the differences between Collaborative Law and mediation?
In mediation, the parties choose one “neutral” professional to assist in resolving the issues. A mediator cannot give either party legal advice, and is prohibited from assisting either side in advocating his or her position. If one partner becomes unreasonable; or lacks negotiating skill; or is emotionally distraught, mediation can become unbalanced. Likewise, should one spouse have greater knowledge about the finances of the household, an unfair advantage may arise. Sometimes, the superior communication skills of one spouse leads to a larger focus on that person’s concerns. If there are attorneys for the parties, they are usually not present at the mediation table--and their legal advice may come long after outcomes have already been decided. When mediation reaches impasse, litigation usually follows.
Collaborative Practice is designed to provide balance; to even the playing field, so to speak; to assure legal representation at every step; and to afford outside expertise when warranted. Each side has an advocate dedicated to settlement. Even if one spouse lacks negotiating experience or financial understanding, the trained Collaborative Attorneys and Allied Professionals help everyone to reach a consensus. It is the job of the attorneys to work with their own client and with each other to make sure that information is shared fully and the process remains positive and productive.
Why is Collaborative Law such an effective settlement process?
Collaborative Attorneys, Communication Coaches, Financial Professionals, and Child Specialists alike have a different state of mind about their roles in collaborative family law dispute resolution. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible “piece of the pie” for their own clients or achieving the most one-sided victory in the courts—no matter the human or economic cost—the Collaborative Team is dedicated to helping clients achieve long-range solutions for their post-divorce restructured families.
Unlike trial lawyers and forensic experts, Collaborative Professionals do not take advantage of mistakes inadvertently made by the other spouse or the other attorney. Likewise, they don’t threaten, insult, or dwell needlessly on negative past events involving anyone in the family. They expect and encourage the highest good faith problem solving behavior from their own clients and from themselves.
Collaborative Attorneys trust one another. While they still owe a primary allegiance and duty to their own clients within all mandates of professional responsibility, they recognize that a settlement impacts the short- and long-term welfare of the entire family. Resolution is not about winning and losing: it is about arriving at workable solutions for spouses and their children as they transition to living apart. Collaborative Practice allows the parties and attorneys to work with neutral mental health and financial colleagues to uncover and implement smooth, sensible, even-handed, and balanced decisions.
Collaborative Law offers a greater potential for creative problem solving than mediation, conventional negotiation, or litigation. Collaborative Law enables two trained lawyers to work with couples face-to-face and focus on the real issues in the family’s future. Trial attorneys may excel at advocacy in the courts, but they are dedicated to very different results based on the positions of their clients. No matter how capable lawyers may be, they simply cannot succeed as Collaborative Attorneys unless they constantly explore satisfactory mutual resolutions to the problems facing both parties. This family-centered approach is unique to Collaborative Practice. A dedication to settlement—arriving at long-lasting and comprehensive agreements—is the foundation for the Allied Professionals in the process, too.
How does the cost of Collaborative Law compare with the expense of litigation?
Litigation is undeniably the most expensive way of resolving a domestic relations dispute. Motions, depositions, subpoenas, discovery, court appearances, law guardians, and forensic experts are all commonplace and costly aspects of divorce through the courts. Statistically, even the majority of litigated cases result in settlements: though usually after depleting substantial marital resources for all these adversarial tactics. Collaboration allows couples to manage their settlement budgets while working with Collaborative Attorneys, Neutral Financial Consultants, Child Specialists, and Communication Coaches whenever necessary, all being committed to cost-effective measures for the family.
Nearly all family law representation is undertaken by lawyers, therapists, and accountants at hourly rates for their professional services. Collaborative Practice enables clients to achieve their goals at combined costs far below the expenses for a prolonged, adversarial and virtually unpredictable law suit in the courts.
Because of the cooperative nature of Collaborative Law, much of the “homework” that occurs between four-way meetings is accomplished by the parties themselves. This delegation of responsibilities yields a very real savings to the spouses as they work toward a “global” settlement. Also, the entry of Allied Professionals into the process occurs when, and only when, the partners decide to retain other collaborative participants. In litigation, the retention of dueling experts may be compelled by a judge or necessitated by what the other partner’s counsel does: when there are minor children, real estate holdings, or even advanced academic degrees attained during the marriage.
How can I get my spouse to commit to this process?
Talk with your partner and determine whether there is a shared commitment to collaborative, “win-win” conflict resolution. Share materials such as this website and articles that discuss Collaborative Divorce. Encourage your spouse to select an attorney who has experience and training in Collaborative Law and also works effectively with your own counsel. No one wants to exhaust limited finances on litigation when there’s another avenue to transitioning to living apart. You know your wife or husband better than anyone: try to create an atmosphere whereby both of you can freely choose a family-focused process that will be private, dignified, and respectful.
How do I find a Collaborative Attorney or Allied Professional in Central New York?
You can find a listing of CNY Collaborative Family Law Professionals here. You may also access the website for the International Academy of Collaborative Professionals. There are valuable links on both sites to learn more about collaboration and locate attorneys, financial advisors, and mental health professionals who are qualified and available to handle your case.
Find the best collaborative practitioners that you can by interviewing several lawyers and learning about their credentials. As the consumer of legal services and as one of the parties to your family dispute, you owe it to yourself to find the “best fit” of a Collaborative Attorney who can work with you and your partner. The more you know about your retained lawyer and fellow professional participants, the better prepared you will be to begin successful collaboration.
If you already use the services of a therapist or perhaps even an accountant or tax preparer, check with them for referrals to Collaborative Attorneys they would recommend. Satisfied collaborative couples are also a great source of information about the process and excellent resources for suggestions about Collaborative Attorneys and Allied Professionals.