What is Collaborative Law?
A. Definition
The International Academy of Collaborative Professionals (IACP) defines Collaborative Practice as: “A dispute resolution practice in which: settlement-by-agreement is intentionally pursued as the positive outcome of legal representation; cooperative practices replace adversarial techniques and litigation; and the parties actively participate in all negotiations necessary for resolution.”
B. History of Collaborative Divorce
The Collaborative practice was created in the 1990s by a family law attorney from Minnesota named Stuart Webb. He saw how damaging litigation is to many families. Since then, the practice has spread to approximately 46 states as well as Europe, Canada and Australia. The IACP states that over 22,000 attorneys have been trained in Collaborative Divorce. In some areas, it is the predominant method for resolving family disputes. One difference in the use of collaborative in various regions is the support from the judiciary. In England, for example, a member of the Supreme Court endorsed the process. Almost a third of all English family law attorneys have been collaboratively trained.
The IACP is the primary global collaborative organization. It was founded in the late 1990s in California. One can learn more about collaborative law at: www.collaborativepractice.com. The American Bar Association (“ABA”) has a Collaborative Law committee.
C. Defining Principals
In collaborative law, the parties agree to stop or delay litigation. Each client retains his/her own collaboratively trained attorney. They may also retain other professionals (jointly or separately), as may be appropriate. The other professionals can include mental health professionals and financial professionals. None of the professionals can participate in any future litigation. The parties engage in informal discovery that is prompt and voluntary. Transparency is key. At the end of the process, in which the parties engage in good faith, the parties should have a written agreement on all issues.
D. Logistics
The parties first sign a participation agreement, which explains the process, including the fact that professionals will withdraw if the case proceeds to litigation. It also dictates that a professional may terminate the process if it believes a party is not participating in good faith.
The parties attend a series of meetings, which may include the full team or certain members of the team. The team has an agenda, and the meetings are generally held in a neutral environment (like a jointly retained professional’s office). The early meetings set the ground rules and expectations. Where mental health professionals are involved, the parties usually meet with them prior to a joint meeting to ensure appropriate behavior in the meetings. The process is client driven. The team is ready to handle emotions. At the end of meetings, minutes are generally drafted and homework assigned.
E. The Future of Collaborative Divorce Law
There is a push to adopt the Uniform Collaborative Law Act, which would standardize procedures for the collaborative process. The ABA has not adopted it, but at least five states (not Arizona) have considered enacting it.
Collaborative Law faces challenges. Education is key, as most of the public does not know it is an option. The use of collaborative law requires a change of paradigm. People need to know that adversarial actions are not mandatory. Cooperation and a process that focuses on the future and saving relationships is not only possible, but available through Collaborative Law.
Alona M. Gottfried is a family law mediator, Arizona collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260
