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Collaborative Family Law Basics

By: Ronald D. Ousky
Collaborative Attorney and Mediator Ousky Law Firm

Introduction

Collaborative family law (also called collaborative practice) is a method of practicing family law in which the attorneys and the clients commit, in writing, to resolve their issues out of court. This method differs from all other alternate dispute resolution methods in that the attorneys and the clients sign a Participation Agreement that requires the attorneys to withdraw if the matter proceeds to court in a contested matter. This agreement to withdraw, the “collaborative commitment,” creates a different atmosphere so that the parties can focus on achieving better outcomes for everyone.

While the collaborative commitment is the one defining principal of collaborative practice, most collaborative cases are also characterized by the following key features: the use of an interdisciplinary team where possible; the regular use of face-to-face joint meetings; the use of neutral experts; informal discovery; and a focus on interest based bargaining.

Collaborative practice has been described as the fastest growing method of alternate dispute resolution in the world. In twenty years, it has grown from an idea of one Minneapolis attorney to a worldwide movement practiced in more than twenty countries and every state and province in the United States and Canada. This remarkable growth has been almost entirely through word of mouth as divorcing couples have been increasingly seeking new ways to resolve conflict. Part of the appeal of collaborative practice is that it allows clients to avoid the acrimony that can result from traditional methods while providing each party with the protection they need through active representation throughout the process.

The Benefits of Collaborative Practice

One of the significant benefits of the collaborative process is that it creates an opportunity to reduce the risk of harm that can sometimes happen through an acrimonious divorce. One of the substantial risks of bargaining in the shadow of the courthouse is that the families can experience significant emotional harm. When clients, particularly parents, feel the need to compete to win the approval of a judge or evaluator, there is a polarizing impact and a natural tendency to exaggerate or distort facts, causing long-term resentment between the parents during a time when their children desperately need them to find the best in each other. The fundamental deterioration in the co-parenting relationship often cannot be undone once a settlement is reached.

In my experience, the collaborative process reduces the risk of harm to children and, in many instances, can help parents actually improve their communication and parenting skills. This has proven to be one of the most significant advantages of pursuing a resolution in a collaborative environment.

The other advantage that attracts many clients to the collaborative process is the opportunity for the parties to have more control over the process. Clients often have a fear that the attorneys, judges, or even evaluators will take control of some aspects of their case in a way that can be difficult to manage. This ability to control the process also leads to other advantages, including the need to have privacy, retain dignity, and control costs.

Clients will often be drawn to collaborative practice because it is less expensive and faster. While it is true that my collaborative cases have been overall about half as expensive and twice as fast as my traditional negotiations, I am reluctant to emphasize either cost savings or speed of the process as the primary advantages. For people who are primarily focused on saving time and money, no process will ever be cheap enough or fast enough. Since most of the time and cost can relate to the conflict, it is important for the clients to take responsibility for their role in finding acceptable solutions. One of the skills that collaborative practitioners learn is how to help both parties accept their responsibility for solutions. Therefore, the cost and speed of the process, like the process itself, is in their hands. Moreover, cheaper and faster is not necessarily better. Clients who take the time to improve their skills in communication, parenting or financial responsibility often achieve something well worth the additional expense.

 Chapter Title: Finding Your Place in the Collaborative World, 2011 ed.

This article is an excerpt from Chapter Title: Finding Your Place in the Collaborative World, 2011 ed. This excerpt was provided by Aspatore Law Books, part of Thomson Reuters. Aspatore books were originally created for a legal professional audience, but have since become popular with non-attorneys thanks to easy-to-understand writing and smart, real-world insights. You can find the entire book available for purchase on the Thomson Reuters Legal Solutions website by clicking the book title linked above.