Different families require different approaches to transition. At the heart of the collaborative approach is the agreement between the spouses and their attorneys that they will pursue the highest long-term interests of the parties and the family as a whole. This is accomplished through a written agreement, enforceable between the parties, not to pursue litigation during the pendency of the collaborative process, which consists of a series of four-way meetings focused on mutual problem-solving. In contrast with the usual “adversarial” approach common in litigation, the lawyers are committed to working together to achieve the legitimate interests of both spouses in a fair and non-adversarial way.
In collaborative practice, the idea of “winning” is simplified: when both spouses work together to achieve a resolution which meets their needs (but not necessarily their wants), protects their children, and maintains their integrity, both sides win.
Collaborative negotiation is a growing area of practice within the field of family law, but only a few lawyers in Colorado practice true collaborative law. It represents the cutting edge of divorce practice, and offers separating spouses the opportunity to work through their divorce in the most respectful, least destructive way. There are several important aspects to the collaborative divorce, the most important of which are the following:
Agreement not to litigate: In order to truly work collaboratively, each spouse and their lawyers agree in writing to not seek intervention from the court during the period of negotiation.
Open communication: In a typical litigated divorce, spouses no longer communicate with each other, and instead pay lawyers to do the talking for them. The results vary widely depending on the lawyers’ ability to communicate accurately and to not impose their own agenda on the case. Nothing is worse than the spectacle of two lawyers engaging in spiraling conflict with each other, for which the spouses must pay. When working collaboratively, all settlement negotiations take place with both spouses and their lawyers in the same room. This maximizes meaningful communication.
Team effort: The collaborative divorce is a joint project of both spouses and their lawyers. Each lawyer still has the obligation to advise his or her client of relevant law, help the client gather all necessary information, and advise the client regarding divorce issues the client would not be expected to know. However, when the group of four meets in negotiation, the focus is on working together to reach agreements which meet the legitimate needs of each spouse. This is in contrast to the typical litigated divorce, where even in settlement negotiations the focus is on an adversarial grabbing of as much of the pie (and any crumbs on the table) as possible. When working collaboratively, the team works to find solutions that do the least harm to, and generate the most benefits for, each party.
Realism: Collaboration is not a panacea, in which all of the difficult emotions, financial and child issues attendant to a divorce magically disappear. Instead, it is a highly realistic approach to all of the issues in the divorce. A litigated divorce tends to focus on legal issues alone, leaving aside the broader impact divorce has on a person. Skilled collaborators will recognize that people in the end want more from their divorce than simply taking as much money, or as much of the children’s time, as possible. People also need a sense of integrity, of closure, and recognition that divorce is a beginning as well as an end.
Training: Lawyers need training to practice collaborative law effectively. Our firm has engaged in this training, and is ready to help you collaboratively resolve your divorce. As a member of the Boulder County Family Law Project, Daryl James has both participated in and taught at many collaborative trainings. We welcome collaborative cases, and offer reduced hourly rates for work in this area.
COLLABORATIVE LAW LINKS
COLLABORATIVE LAW MATERIALS
“COLLABORATIVE FAMILY LAW – ALIVE AND WELL IN BOULDER COUNTY” This article describing the collaborative law process by Daryl James was first published in the Boulder County Bar newletter in 2004.
“PRINCIPLES AND GUIDELINES FOR THE PRACTICE OF COLLABORATIVE LAW” These principles and guidelines set out the commitments made by parties to the collaborative law process.
“EMPIRICAL BASES SUPPORTING COLLABORATIVE PRACTICE” Daryl James explores the empirical basis of collaborative family law practice.
“PERSUASION UNDER THE RADAR: PSYCHOLOGICAL INFLUENCE DURING NEGOTIATION AND ITS EFFECT ON COLLABORATION.” Daryl explores the effect of psychological influence in negotiation and collaboration.