1. WHAT ARE MY CHOICES FOR PROFESSIONAL HELP IN MYDIVORCE?
All divorces involve decisions and choices. Which solicitors will assist you, and how you will utilise their help, are decisions that can powerfully affect whether your divorce moves forward smoothly or not.
Some couples resolve all their divorce issues without any professional assistance at all, although all are advised to seek legal advice. On the other end of the spectrum, some couples engage in protracted courtroom battles that cost dearly in emotional and financial resources and can take considerable time to complete. Most people find their needs fall between these extremes.
Below are the choices for obtaining professional legal services in divorce that are available today. The list moves from choices involving the least degree of professional intervention, and the most privacy and client control, to choices involving greater professional intervention and the least privacy and control.
» Mediation:
A single neutral person, who may be a lawyer, or simply a mediator, acts as the mediator for the couple. The mediator helps the couple reach agreement, but does not give individual legal advice.
» Collaborative Law:
Each person retains his or her own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues. All negotiations take place in "four-way" settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Each client has built-illegal advice and advocacy during negotiations, and each lawyer's job includes guiding the client towards reasonable resolutions. The legal advice is an integral part of the process, but all the decisions are made by the clients. The lawyers generally prepare and process all papers required for the divorce.
» Conventional Representation:
Each person hires a lawyer. The lawyers may be good at settling cases, in which case they work towards that goal at the same time that they prepare the case for the possibility of a court hearing. The pacing and objectives of the legal representation tend to be dictated by what happens in court. Cases handled this way generally involve higher legal fees, and take longer to complete than collaborative law cases or mediated cases. The risk of a high conflict divorce is higher than with mediation or collaborative law.
One or both parties may be motivated primarily by strong emotion(fear, anger, guilt etc) and as a consequence the parties take extreme, black and white positions and look to the courts for revenge or validation. Reasonable accommodations are not made. This is the costliest form of dispute resolution, emotionally and financially. It is always destructive for the children involved. Such cases can drag on for many years. Few clients report satisfaction with the outcome of cases handled this way, regardless of who won.
2. CAN YOU SAY MORE ABOUT COLLABORATIVE LAW?
Collaborative law is the newest divorce dispute-resolution model. In collaborative law, both parties to the divorce retain separate, specially trained lawyers whose only job is to help them settle thecae. If the lawyers do not succeed in helping the clients resolve the issues, the lawyers are out of a job and can never represent either client against the other again. All participants agree to work together respectfully, honestly, and in good faith to try to find win-win solutions to the legitimate needs of both parties. Four creative minds work together to devise individualised settlement scenarios. No-one may go to court, or even threaten to do so, and if that should occur, the collaborative law process terminates and both lawyers are disqualified from any further involvement in the case. Lawyers hired for a collaborative law representation can never under any circumstances go to court for the clients who retained them.
3. IS COLLABORATIVE LAW ONLY FOR DIVORCES?
Collaborative lawyers can do everything that a conventional family lawyer does except go to court. They can negotiate non-marital agreements and custody agreements.
4. WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE LAWAND MEDIATION?
In mediation, there is one neutral professional who helps the disputing parties try to settle their case. Mediation can be challenging where the parties are not on a level playing field with one another, because the mediator cannot give either party legal advice, and cannot help either side advocate its position. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair, but parties are advised to seek their own legal advice. Collaborative law was designed to deal with this problem, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is levelled by the direct participation of the skilled lawyers. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.
5. HOW IS COLLABORATIVE LAW DIFFERENT FROM THETRADITIONAL ADVERSARIAL DIVORCE PROCESS?
» In collaborative law, all participate in an open, honest exchange of information. Neither party takes advantage of the miscalculations or mistakes of the others, but instead identifies and corrects them.
» In collaborative law, both parties insulate their children from their disputes and, should custody be an issue, they avoid court.
» Both parties in collaborative law use joint experts and other consultants, instead of adversarial experts.
» In collaborative law, a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.
» In collaborative law, the lawyers must guide the process to settlement or withdraw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or goes to court.
6. WHAT KIND OF INFORMATION AND DOCUMENTS AREAVAILABLE IN THE COLLABORATIVE LAW NEGOTIATIONS?
Both sides sign a binding agreement to disclose all documents and information that relate to the issues, at the start of the process. Both lawyers stake their professional integrity on ensuring full, early, voluntary disclosure of necessary information.
7. WHAT HAPPENS IF ONE SIDE OR THE OTHER IS NOTCOMPLETELY HONEST IN SOME WAY?
That can happen. There are no guarantees that one's rights will be protected if a participant in the collaborative law process acts in bad faith. There also are no guarantees in conventional legal representation. What is different about collaborative law is that the collaborative agreement requires a lawyer to withdraw upon becoming aware his/her client is being less than fully honest, or participating in the process in bad faith.
For instance, if documents are altered or withheld, or if a clients deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to pay agreed maintenance.
8. HOW DO I KNOW WHETHER IT IS SAFE FOR ME TO WORK INTHE COLLABORATIVE LAW PROCESS?
The collaborative law process does not guarantee you that every asset or every pound of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works very hard to cuneal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high, and the results uncertain. However, far greater efforts to track down concealed assets and income can be expected in conventional litigation than in collaborative law, which relies upon voluntary disclosure.
You are generally the best judge of your spouse or partner's basic honesty. If he/she would lie on an income tax return, he or she improbably not a good candidate for a collaborative law divorce, because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty, then the process may be good choice for you. The choice ultimately is yours.
9. IS COLLABORATIVE LAW THE BEST CHOICE FOR ME?
It is not for every client but it is worth considering if some oral of these are true for you:
» You want a civilised, respectful resolution of the issues.
» You would like to keep open the possibility of friendship with your partner down the road.
» You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
» You want to protect your children from the harm associated with litigated dispute resolution between parents.
» You and your partner have a circle of friends or extended family in common that you both want to remain connected to.
» You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
» You value control and autonomous decision making and do not wanton hand over decisions about restructuring your financial and/orchid-rearing arrangements to a stranger (i.e. a judge).
» You recognise the restricted range of court decisions generally available in the public court system, and want a more creative and individualised range of choices available to you and your spouse or partner for resolving your issues. For example, maintenance of children in further education cannot be determined in a divorce process.
10. MY LAWYER SAYS SHE SETTLES MOST OF HER CASES. HOW IS COLLABORATIVE LAW DIFFERENT FROM WHAT SHE DOES WHEN SHESETTLES CASES IN A CONVENTIONAL LAW PRACTICE?
Any experienced collaborative lawyer will tell you that there is big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law cases settle figuratively, if not literally, "on the courthouse steps". By that time, a great deal of money has been spent, and great deal of emotional damage can have been caused. The settlements can be reached under conditions of considerable tension and anxiety. Moreover, the settlements are reached in the shadow oaf court hearing, and are generally shaped largely by what the lawyers believe the Sheriff in the case is likely to do.
Nothing could be more different from what happens in a typical collaborative law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualised, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.
11. WHY IS COLLABORATIVE LAW SUCH AN EFFECTIVESETTLEMENT PROCESS?
Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve the best all round settlement for themselves in their post-divorce restructured families. They expectant encourage the highest good-faith problem-solving behaviour from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in. Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process. Collaborative law offers a greater potential for creative problem solving than does either mediation or litigation, in that only collaborative law puts two lawyers in the same room pulling in the same direction with both clients to solve the same list of problems. Lawyers excel at solving problems, but unconventional litigation they generally pull in opposite directions. No matter how good the lawyers may be for their own clients, they cannot succeed as collaborative lawyers unless they also can find solutions to the other party's problems that both clients find satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.
12. HOW DO I FIND A COLLABORATIVE LAWYER?
You can refer to the Scottish Collaborative Family Law Group website or telephone the Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh on 0131-226-7411.
13. HOW DO I ENLIST MY SPOUSE/PARTNER IN THE PROCESS?
Talk with him or her, and see whether there is a shared commitment to collaborative, win-win conflict resolution. Share materials with him or her such as this Introduction to the Divorce Process and articles that discuss collaborative law. Encourage him or her to select a solicitor who has experience and training in collaborative law and who works effectively with your own solicitor. Lawyers who trust one another are an excellent predictor of success in dispute resolution.
14. HOW LONG WILL MY DIVORCE TAKE IF I USECOLLABORATIVE LAW?
The collaborative law process is flexible and can expand or contractor meet your specific needs. Most people require from three to seven of the four-way negotiating meetings to resolve all issues, though some divorces take less and some take more. These meetings can be spaced with long intervals between, or close together, depending on the particular needs of the clients. Once the issues are resolved, the lawyers will complete the paperwork for the divorce.
15. HOW EXPENSIVE IS COLLABORATIVE LAW?
Collaborative lawyers generally charge by the hour as do conventional family lawyers. Legal aid may be available, depending on income and capital.
No-one can predict exactly what you will pay for this kind of representation because every case is different. Your issues may be simple or complex; you and your partner may have already reached agreement on most, or none, of your issues. You may be very precise or very casual in your approach to problems. You and your partner may be at very different emotional stages in coming to terms with separating from one another. What can be said with confidence is that no other kind of professional conflict resolution assistance inconsistently as efficient or economical as collaborative law for abroad a range of clients.
