How does Collaborative Law compare to Litigation?
Traditional litigation is a court-based, adversarial process that assumes a “winner” and a “loser” in every dispute. Because the parties are focused on who is “right” and who is “wrong”, they tend to establish positions early and hold them to the bitter end. Dialogue and understanding are marginalized in this process, because the parties and their lawyers are focused on winning their case instead of fairly resolving issues in a way that honors and respects each person’s role in the marriage. Invariably, money is spent needlessly defending yourself or your position in court.
With Collaborative Law there is no court appearance and no trial. You and your spouse/partner make all decisions together. The goal of collaboration is to reach a settlement that is acceptable to both parties. You have more control over the outcome of your dispute in a collaborative setting than in a courtroom, where the judge will have the final say.
Collaborative Law changes the emotional and adversarial landscape by seeking resolution in a meaningful way. Litigation can take a long time. But even if it doesn’t take a long time, it takes an unnecessary toll on everybody involved, especially children. Collaboration focuses on understanding everyone’s needs, interests, and values, and it helps the parties convert those interests into long-term, durable agreements. The process relies on teamwork to help you problem-solve and maintains open channels of communication between you and your spouse/partner.
In either model of practice, an attorney represents each party, but your collaborative lawyer has had special training the traditional lawyer has not had. This special training helps you and your spouse/partner get to and stay at the table, even when the going gets rough.
Parties who use Collaborative Law to settle their case are typically more satisfied with the result, maintain more control and voice in the process, and have built a foundation for future communication with the other party.
How does Collaborative Law compare to Mediation?
Mediating early in a case (called “Early Stage Mediation”) and Collaborative Law are both ways of resolving issues cooperatively. Collaborative Law is similar to Mediation in that neither requires a court appearance or a judge to decide the outcome of the dispute. Both focus on reaching a mutually agreeable resolution for all parties involved, and both focus on improving communication and negotiation abilities.
The main difference between the methods is the level of support the professional provides the parties. In Mediation, the mediator acts as a neutral, unbiased facilitator. Some mediators are lawyers; some are not. Leslie and Andrew are both lawyers and mediators, but never at the same time. Your mediator may share general legal knowledge when it makes sense to do so, but does not give either party personalized legal advice, nor gives either party an opinion of what the resolution “should” be. Instead, the mediator facilitates decision-making between the parties.
It is not unusual for your mediator to recommend one or both parties talk with a mediation-minded lawyer about how the law impacts a person individually. Mediation sessions may be held with all parties at the table or in separate rooms with the mediator shuttling between.
In Collaborative Law, a different attorney represents each client and provides personalized legal advice, recommendations and guidance throughout the entire process. Most often, discussions are held with all parties and their attorney in the same room, and the parties communicate directly each other with the support of their own lawyer in the room.
In Collaborative Law, the attorneys enter into an agreement to cooperate and to not litigate even if the couple is at an impasse; however, the attorneys have an ethical duty to protect their own client’s interests.
In Collaborative Law, a team approach is typically used; the team provides structure and controls the process for the clients. The clients control the outcome and make their own decisions about how to restructure their futures. In Early Stage Mediation, the mediator works with the clients directly to determine the process, and a team approach may or may not be used depending on the unique needs and interests of the clients. In Early Stage Mediation, the attorneys are usually not present at most sessions; however, depending on the needs of the clients, attorneys may be present at some or all sessions. The attorneys in a mediation process do not promise not to litigate, and may or may not be “mediation-friendly”.
Both methods are used to resolve issues cooperatively, to empower the clients, and to consider client needs and interests. Early Stage Mediation can be more efficient and less costly for clients than Collaborative Law. On the other hand, Collaborative Law may be preferable if the clients need real-time legal advice and more team support.
What is a Participation Agreement?
In Collaborative Law, all parties and lawyers sign an agreement (called a Participation Agreement) that if the case does not settle, the parties will each retain a courtroom lawyer. The Collaborative Lawyers may not serve as the courtroom lawyers.
The Participation Agreement helps to keep all participants focused on the goal of collaborative resolution and settlement. It also allows the lawyers to stay focused on reaching that settlement instead of planning for the possibility of becoming future adversaries. This encourages transparency and open communication, important elements that promote the ability of people to reach durable agreements.
If the parties can’t resolve their issues, then the Collaborative Professional Team withdraws from the process, and the collaborative lawyers transition their clients to courtroom attorneys so the parties can finish their case using the courts. (This is a rare occurrence, since your Collaborative Professional Team uses special techniques to manage conflicts and avoid impasse).