What is Collaborative Law?
What is Collaborative Law?
The Collaborative process is an alternate method to separation and divorce.
The collaborative process is not something completely new, as lawyers and parties have always negotiated in an attempt to settle their disputes amicably out of court even during litigation. However, as more people recognize the impact and toll that litigation and high-conflict divorce has on a person and family, the collaborative method of settlement out-of-court has gained more popularity.
Collaborative law is a solution-oriented process to allow couples to separate and divorce on their own terms. A collaborative separation and divorce is a flexible method to craft agreements and solutions with each spouse having their own Attorney without having to go to Court and litigate, with a Judge deciding their case.
The Collaborative approach is based upon the interests and priorities for the couple and family and not just what a Judge deems to be fair after a short, snap-shot picture of the couple, marriage, and family. During the process you work with trained professionals who assist you. The collaborative separation approach allows for open communication and information sharing.
North Carolina has a specific set of statutes for collaborative law proceedings in N.C.G.S. Chapter 50 Article 4. The North Carolina statutory definition of Collaborative law is:
Collaborative Law Defined: “A procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.”
Steps in the Collaborative Divorce Process:
1. Sign a Participation Agreement –
Both parties with their collaboratively trained lawyers will sign a Participation Agreement. This agreement is a pledge that both parties sign agreeing to use the collaborative process as the exclusive means to resolve their disputes. All parties agree that they will not file and initiate a lawsuit during the collaborative process. As a further incentive to reach an agreement outside of Court and not turn to litigation, the parties agree that they will not be permitted to use their collaborative counsel for any litigation that may arise relating to the same or similar issues addressed in the collaborative process.
2. Begin the Exchange of information –
Each party will meet separately with their lawyer and then they will have a group collaborative session to begin identifying the information, records, and documents that need to be exchanged to move towards identifying a resolution.
3. Identify interests and goals –
The next step, is to begin to identify goals and interests for each party individually, as well as shared goals and interests. This helps lead to identification of resolutions for settlement.
4. Brainstorm solutions –
During this stage, the parties through legal counsel, will brainstorm solutions that fit one another’s interests and goals. It is truly a brainstorming process and there is no wrong answer at this stage.
5. Evaluate and select proposals –
The parties and their lawyers will next begin to review and evaluate the various proposals and options to craft a proposal that seeks to meet each party’s needs and desires.
6. Final Settlement Agreement –
The final step in the collaborative settlement process is the Agreement. This is where your hard work has paid off! The lawyers will draft an Agreement that all parties will review and sign. This Agreement is an enforceable settlement agreement.
Benefits of a Collaborative Separation & Divorce
Child Custody: Collaborative Process and the Benefits for Child Custody
We seek to keep parents focused on the best interests of their children. The custody agreement will be unique based upon the specific needs of your children and family and not based upon an often-times cookie cutter Custody Court Order based upon what our laws dictate is best for children. The collaborative settlement process allows your attorney to advocate for what is important and negotiate a fair settlement for custody while shielding your children from the typical “divorce drama” associated with litigation.
We can assist with the challenges of co-parenting and creating ideas of how to resolve custody disputes going from one to two separate households but, still trying to keep them unified.
You can be better parents apart. Yes, separation and divorce are not easy but, you can work together, forgive, and co-parent. With an open mind, you can learn to have a better appreciation for one another’s gifts and talents each other offer in shaping who your children will become. It will NOT be easy but, you can successfully restructure your relationship and family through the collaborative custody process.
This type of alternative dispute resolution process is extremely beneficial for families with children. The collaborative process for custody can assist in the transition and lessen the impact that separation and divorce can have on children to keep them happy and well-adjusted.
What Makes the Collaborative Process a success?
For a successful, simple separation (and simple divorce) the process requires cooperation and compromise by both parties. The key element for a successful collaborative divorce and reaching a settlement out-of-court is for both parties to have the mutual goal to want to resolve differences and negotiate out of court. You and your partner/spouse may not agree on everything right now but, if you can both agree that you want to stay out of a courtroom and do not desire long drawn out litigation you are one step in the right direction!
This method of separating and uncoupling is not going to work for every couple but, parties who make the commitment to negotiate in good faith and truly desire to resolve their differences together in a mature way are typically going to be much more satisfied with the end result.
Even if this process may not work for your situation, we encourage you to learn about the process and make a good-faith attempt to settle and it will still allow you to gain valuable insight, legal advice, and planning to guide you forward and focus you on what is important.
With our firm, we seek to teach you how to deal with conflict, how to negotiate strongly but professionally, and what it means to effectively co-parent for parties with children. These tools and lessons can then be implemented and carried-over into other areas of your life. It is our goal that you will be able to apply the principles and concepts you will learn in the collaborative divorce process for the handling of future potential conflicts. We seek to teach you how to work through differences in a calm, thoughtful, and respectful way not only with your ex-spouse or ex-partner but, with co-workers, other family members, step-parents, and your children.
With the right lawyer, mindset, and focus you can be successful in this out-of-court separation process. You can traverse your differences with the other party in a positive way with the end result being a private agreement. This Agreement will likely be one that you can be proud of, happy and satisfied to sign knowing you shared in the creation of the agreement and did what was best for yourself and all those involved.