Basics of Collaborative Family Law

In New York, Collaborative Law is a new form of dispute resolution that is rapidly gaining popularity. In a collaborative divorce case, both spouses are represented by lawyers in the traditional attorney-client relationship. In order to participate in the process, the clients unconditionally promise not to go to court. If the parties terminate the collaborative law process and decide to go to court, both attorneys are obligated to withdraw. With this non-combative approach, both clients and counsel are compelled to seek a negotiated agreement.

This approach will keep divorce civil, cooperative, and can even speed up the New York divorce process, since the clients are not relying on the court’s schedule. Another benefit to choosing Collaborative Law is that because both spouses are able to work together on an agreement, there is a greater chance that both parties will voluntarily follow its terms in the future.

Collaborative divorce in New York uses informal methods of financial disclosure such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals, including family counselors, accountants and financial planners.

Collaborative law creates a cooperative atmosphere, unlike the adversarial atmosphere of the courtroom. Unlike mediation and arbitration, Collaborative Law provides the client with trained legal advocates, without the court costs. A New York divorce handled in court is likely to be much more expensive and time consuming than the costs and time involved in collaborative law.

Collaboration represents the middle ground between mediation and full adversarial litigation. In mediation, the parties meet with a neutral mediator who assists the parties to find a compromise. In mediation the parties advocate for themselves, the mediator cannot give any party advice or assist either of the parties in advocating their position.

In the collaborative setting in New York, each spouse is fully represented by a competent family law attorney protecting their interests. Collaborative attorneys can also prepare all necessary paperwork for their clients and, if requested, can attend the required court hearing where the divorce agreement is presented to the court for approval.

Not every attorney practices Collaborative Law. Not every client is willing to give up their right to have the divorce adjudicated in court. For many attorneys, however, their trial court experience has led them to a belief that the commitment of their skill and time to a litigated case often does not achieve an outcome which is cost-effective, or even a good solution for their clients’ problems. Similarly, many clients are looking for experienced legal counsel, who can bring knowledgeable guidance and provide skilled advocacy, but do no want litigation. In those situations, Collaborative Law is an excellent option.

Collaborative Law relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well-being of the family. The parties engage in a series of meetings with their attorneys to discuss all issues and concerns, coordinate necessary research, retain the services of any necessary experts and discuss the future needs of the parties. It is hoped that through honest and open communication the parties, with the assistance of their attorneys, will reach a mutually beneficial agreement.

Collaborative Law requires each party and each attorney to take a reasoned position on all issues. Where such positions differ, all participants use their best efforts to create proposals that meet the fundamental needs of both parties, and, if necessary, to compromise to reach a settlement of all issues.

Some General Principals and Guidelines of Collaborative Law:

Negotiation through cooperation rather than adversarial strategies
Practicing law through problem-solving negotiations in which the parties are proactive, seek
to understand and to be understood
The parties are responsible for the action and the outcome
The parties develop common ground rather than focus on differences
The parties seek to understand the other person’s interests and concerns, which will lead to
creative solutions to problems
The parties seek to resolve issues and concerns with each accepting and supporting the
other person’s opinions

The attorneys should:

advise the clients of the law that applies to their circumstances.
be a model for their clients acting in a cooperative, honest and dignified manner with mutual r
respect to everyone involved in this process.
guide their clients through the process using active listening and respecting each party’s
opinions and concerns.
always use neutral language in speaking and writing.
bring stability and reason to emotionally charged situations.
work together to provide all discovery and disclosure so that the parties can make informed
decisions.
avoid using adversarial techniques or tactics.
bring in any other needed professionals (appraisers, financial consultants, communication
specialists) to assist the parties in reaching agreement and to overcome any impasses.
file documents with the Court that are prepared with the mutual agreement of all parties. For
example, some parties have filed a “Joint Original Petition for Divorce”.

Clients should:

be honest.
take responsibility for the outcome of the issues that are not resolved.
adhere to the principles and guidelines of the collaborative approach.
explore differences in perspective, interests and desired outcomes rather than react to them.
look for creative solutions to their problems.
actively listen to their spouses’ concerns, recognize the needs of the other spouse, and treat
their spouse with respect and patience.
respect everyone involved in the Collaborative Law process.
be patient with the Collaborative Law process.

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