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A day after Jason Kidd claimed in divorce papers to be a victim of spousal abuse, his wife's attorney said the New Jersey Nets point guard had no reason to fear the diminutive woman. "He says he's threatened by her? He's a star athlete. She's 5-foot-2, I think, and 105 pounds," said celebrity New York divorce lawyer Raoul Felder, one of the attorne
New Jersey's gay couples are gaining all the rights and responsibilities of marriage under state law as New Jersey moves to become the third in the nation to institute civil unions and the fifth to offer some version of marriage. NJ divorce attorneys are "excited" about this development and the prospect for a new client pool.
Overview and History
Collaborative Family Law (also called Collaborative Practice, Collaborative Divorce, and Collaborative Law) was originally a family law procedure in which the two parties agreed that they would not go to court, or threaten to do so.
This approach to conflict resolution was created in 1990 by a Minnesota family lawyer named Stuart G. Webb, who saw that divorce litigation was not always helpful to parties and their families, and often was damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada, Australia], and elsewhere. Per the International Academy of Collaborative Professionals("IACP"), more than 20,000 lawyers have been trained in Collaborative Law in the United States, with Collaborative practitioners in at least 46 states. In some localities, Collaborative Law has become the predominant method for resolving divorce, co-habitation and other family disputes. More than 1,250 lawyers have completed their training in England where Collaborative Law was launched in 2005, and Collaborative Law has now spread worldwide.
In a Collaborative case, the parties strive to reach a fair settlement through a series of meetings, sometimes called joint sessions, between the two parties and their lawyers, and sometimes other neutral experts. The primary focus of the four-way meetings or joint sessions is to identify the priorities, goals, needs and interests of the parties, and help them progress towards and create a settlement that is consistent with their priorities, goals, needs, and interests. The parties make their own decisions based on their own standards. Some have critiqued this aspect of Collaborative Law (and mediation), believing that rights-oriented court processes provide more protection than interest-based voluntary dispute resolution processes. However, most lawyers involved in the divorce process agree that the parties can often make better-informed decisions about their children and their families, and about their economic and other circumstances, than even an excellent judge can ever do.
There is a parallel between Collaborative Family Law and interest-based mediation, in that both are facilitative processes. In Collaborative Law the parties agree from the beginning of the dispute not to go to court. The lawyers are trained in mediation, and act both as the facilitators of the process and as advisor-advocates for their clients. In mediation, the mediator is a neutral third party who doesn't represent or advise either side. Hence, mediation may provide less safety for clients. Because their own attorneys facilitate the process, in Collaborative Law, the parties are fully informed about the law and the legal consequences of various options.
Participation Agreement
The key document to commence a Collaborative Law case is called the Participation Agreement. It is a contract signed by the participants, which lists the rules for the process. The parties and lawyers agree that:
- The Collaborative lawyers are disqualified from litigating the case. If the process ends prior to final resolution, and litigation is the only recourse, the Collaborative lawyers must withdraw and the parties must retain new lawyers (the "disqualification" provision);
- Neither party will take advantage of mistakes by the other side;
- The parties will freely disclose all pertinent information and will not hide any material facts;
- What is said in the settlement meetings remains confidential;
- All experts will be neutral, and hired jointly by both parties; and
- Everyone will behave courteously and in good faith.
1. The disqualification provision is a key element to a collaborative case. It ensures that the lawyers' interests are aligned with the clients' interests of reaching settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution, because if a settlement is not reached they are "fired" by their respective clients. Collaborative Law practitioners believe that when court is no longer a good option, non-court methods of reaching settlement are more likely to be pursued. Collaborative Law practitioners also believe that the disqualification provision adds a necessary element of trust for the participants, thereby enhancing the likelihood of resolution. Additionally, when court is not an option, it is believed that many Collaborative Lawyers will retool to learn the additional skills that are needed to resolve disputes using interest-based methods, and without resorting to a third party decision maker.
2. This is a process where creating an atmosphere of trust is key. Various provisions, from the agreement not to take advantage of a mistake of the other party, to the obligation to fully disclose material facts, to behavioral agreements, are intended to advance that trust. This advances the ability of the parties to part from each other with integrity, and preserving ongoing relationships, which is doubly important when children are involved. A short term advantage that a litigator may obtain from taking advantage of a technical legal mistake of the other lawyer can lead to a long term disadvantage in creating mistrust and resentment among the parties.
3. Even in a litigated divorce, the parties must disclose information. But this can be an expensive process as attorneys and parties try to only disclose what they have to under the rules. Open disclosure merely discloses that which the parties should be required to disclose in an atmosphere of trust and efficiency that should reduce legal costs.
4. As opposed to exposing your family and finances to an open court process, Collaborative Law respects the privacy of the family. This is important to shield the children. In cases with no children, the fact that one's financial information is not disclosed as in an open court process can be important, especially in an era where court records are becoming available on the Internet.
5. Neutral experts are important in cases whether or not children are involved. In litigation cases with children, people often hire mental health experts to prove the other party wrong and subject the children to these "experts" to prove a point. In litigation, financial experts are hired to prove a point. In both instances the parties' sensitive information is exposed in a public process and often distended beyond recognition. Hiring two experts is expensive, inefficient, and may prevent parties from getting unbiased information. In the Collaborative Process, time and money is saved by the parties agreeing on one expert not to make arguments, but to educate and help them make the best decisions for their children and their finances.
6. Behaving in a courteous manner and in good faith acknowledges the relationship the parties once had and enhances trust and safety that is necessary to be able to reach a negotiated agreement. It also acknowledges that the parties will have to live and maybe deal with each other again in the future, especially if they have children, and the likelihood of future cooperation is enhanced when parties can be courteous. It also is part of the concept that the parties are working towards an amicable resolution.
Some lawyers who are not trained in the Collaborative Law process believe that the disqualification clause is an unnecessary disadvantage, because all parties are required to appoint new lawyers if the Collaborative Law process ends without settlement. Collaborative Law attorneys recognize this disadvantage, but believe that the advantages of the process and tools that become available with the disqualification provision outweigh the disadvantages. It is extremely rare for a Collaborative case to end without settlement. Further, the parties know their respective attorneys are committed to settlement because they will be fired if the case does not settle. Otherwise, the lawyers can have a financial incentive not to settle as they can be paid quite a bit more if the case proceeds to trial.
Team Approach
In most jurisdictions, Collaborative Family Law makes use of a team approach to help the couple make fully-informed, carefully considered, settlement decisions. In some jurisdictions, the group brings in outside consultants as needed, and in other jurisdictions the team is integral to the process from the outset.
Typically, a Collaboratively-trained financial specialist is part of a team. Financial specialists help by efficiently and thoroughly providing a financial analysis of assets, debts, and budgets for the couple, to allow the couple to do informed future planning. Some of the ways a financial specialist helps are to model alternatives for dividing the assets or retirement funds, flagging possible tax implications, and help explore possibilities and interests to ensure financial security for the parties. A financial specialist may also help educate a party who needs more education on finances, and who may need extra support to learn the necessary information in order to make decisions that meet that person's needs. Other financial experts may be hired, for example to value a couple's business or do a real estate appraisal.
A divorce and communications coach for each party (typically a mental health professional) can also be important. Divorce is an emotional process and having a coach for each party can help clients be effective in negotiating sessions in an efficient manner, and can help attorneys better facilitate negotiations. Collaborative Family Lawyers are trained to deal with legal issues, but they may n
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