What is the difference between Collaborative Divorce, Mediation and Litigation? Litigation is a closed model that benefits lawyers and is expensive. Mediation is less costly and Collaborative Divorce is an open process that addresses the emotional, financial and child related divorce issues. Please see the article below for additional information.
What is Collaborative Family Law? By: Brian Don Levy
Collaborative family law is a powerful and effective way for people who are divorcing to reach fair solutions and resolve differences, using highly trained and skilled professionals, while avoiding the cost and uncertainties of litigation. Collaborative family law is about achieving a fair and equitable settlement and assessing and accomplishing the thoughtful restructuring of the family.
The collaborative family law process is progressive because it allows couples to obtain the positive advantages of legal, financial, psychological and personal assistance in sorting out the complexities of their divorce, while at the same time focusing on issue resolution and family growth while completely avoiding the harmful disadvantages of the adversarial litigation process.
Only collaborative family law addresses the whole picture that is involved in divorce. It recognizes that divorce is more than a legal procedure or event. It is also a time of intense distress and proves to be challenging for the parties and particularly for the children. Many financial issues are involved and often they are complex. Because it does address the whole picture, the collaborative law process helps parties achieve a more complete, enriching and long term resolution.
In this process, parents and children tend to suffer fewer traumas, heal faster and have better relationships with each other after the divorce. Additionally, children are protected from the most devastating aspects of a family break-up.
People can use the collaborative family law process to resolve all of their issues, including child custody and visitation issues, property division and support. Post-divorce issues, such as adjustment of time with children or adjustment of support, can also be solved with collaborative law.
How Does It Work?
In a collaborative divorce, you will create a ?container? that can be filled with a team of experts who will work with you in an exchanging and meaningful dialogue directed toward the identification of and resolution of issues. The various individuals who work within the ?container? can and will vary based upon the needs of the individual divorcing couple. You can have your own attorney who will provide you with full legal protection and advocacy. You will also have support and coaching from a psychological expert. There can also be a neutral financial professional to provide analysis and advice. All financial information is exchanged voluntarily and completely. The divorcing parties are still bound by their fiduciary duties of good faith and full and complete disclosure of assets and debts among other things. Your attorney helps you to assess the information and provides guidance and options.
A series of multi-party meetings is scheduled to systematically identify and examine the issues, explore options and work toward an agreement that satisfies both parties. An agenda is set for each meeting in advance, so that everyone is clear on what issues will be discussed during any given meeting. Attorneys can meet with their clients to prepare for each meeting.
A problem-solving approach is always used, centered in "interest based negotiations". Collaborative attorneys and Collaborative Mediators are trained in collaborative practice as well as interest-based negotiation, and they help the parties to work productively to find agreements that meet the real interests of both. This type of negotiation allows both sides to win ("win-win? negotiation as opposed to the ?win-lose? litigation model).
The collaborative family law process is voluntary, and both parties must agree to participate and to continue working together until resolution is achieved. This means that each participant has a stake in being fair and cooperative, because uncooperative behavior will cause the process to terminate and force the parties back to the litigation model.
If the process does terminate, the parties continue to have all of their rights and remedies under the law. The collaborative attorneys will withdraw and the parties can proceed to hire counsel to take the case to court and have their matters be decided by a judge.
What are the differences between litigation, mediation and collaborative divorce?
The traditional litigation model displays clients talking with their lawyers, and in turn the lawyers discuss positions with each other. As you can see, the communications in this model are restricted and designed to empower the lawyers. If the lawyers are unsuccessful in bringing about a solution, the decision-making authority is turned over to a judge who will know little about you and your situation other than a quick snapshot view.
This model is antiquated, and burdened with heavily congested calendars and closings of courtrooms due to budgetary consideration.
*C-client(s); L-lawyer(s); M-mediator
The traditional mediation model has a number of advantages over the litigation model; however, the dialogue is once again restricted. Divorcing parties talk with a mediator, and then may choose to consult separately with a lawyer who was not part of the original dialogue that lead to issue resolution. There is a potential for break down at this point due to the lack of depth of understanding.
The collaborative model can contain various participants; much like an “open container” within which the parties, their lawyers, coaches, and other professionals all contribute to dialogue and create an exchange of ideas. All of the professionals in the collaborative container have access to all efforts to identify and resolve issues in a more open forum, which makes it more difficult for one participant to pursue a "hidden agenda". The collaborative process is the “cutting edge”—designed to make the most out of an admittedly bad situation.
What About Costs?
If you must divorce, what would it be worth to you to have a superior resolution process that is fair and rewarding? Experience shows that collaborative family law cases are substantially less expensive than cases that are taken to court. At the same time, collaborative divorce is almost always more satisfactory and productive for the participants. Costs will vary depending upon the difficulty of the matter, but one thing is certain: no funds will be spent on waging war. In collaborative family law, parties are assured of getting the assistance they need to succeed, while avoiding costs associated with unproductive fighting. The dollars spent on the collaborative process are a wise investment in a better future for the parties and for their children.
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