Collaborative Law


COLLABORATIVE LAW: THE NEW PROVEN FORM OF DISPUTE RESOLUTION

 The collaborative law process is a new way of settling family law issues. It is oftentimes the best way to resolve a family law matter, especially when the future of your children is involved. All family issues— divorce, custody, child access and visitation, property settlement, relocation, separation agreements, to name a few, can be resolved through the collaborative law process.  Collaborative law is a process designed for negotiation, not for litigation.  There is no formal discovery, motions or trial.

WHY COLLABORATIVE LAW?

Collaborative law is based on a simple fact: 95-97% of all divorce and other civil cases settle before trial.  Several years ago, some family litigation lawyers in Minnesota asked, "since the overwhelming odds are that the divorce and/or custody case is going to settle anyway, why should lawyers act as if they are going to litigate the case, when the case will almost certainly settle before trial?  Why not deal with your case in a realistic manner, so that the lawyers conduct your case in a civilized manner, negotiating from the start rather than sending letters, pleadings, discovery and motions back and forth through litigation?  Why not save the client's time, money and heartache by entering the case with the goal of helping the parties to settle, rahter than with the fiction that a judge will acutally hear the case?"

THE COLLABORATIVE LAW PROCESS

In the collaborative law process, you make the decisions without relying on a judge or arbitrator to make the decisions for you.  On the other hand, unlike the mediation process the negotiations take place with either the lawyers, or, in the case of family law case, divorce coaches present, thereby providing more direct support to the parties as the negotiations are conducted.  In Collaborative Law, you hire an attorney specially trained in the art of negotiation and who understands the shift between being a negotiation attorney and a litigation advocate.  In divorce cases, you may also find it advantageous to bring in specially trained "divorce coaches" and a neutral financial advisor. 

The approach from beginning to end is different in the collaborative law case.  In the beginning, the parties and attorneys sign an agreement that the attorneys cannot litigate the case for the parties, so if it is not successfully resolved in negotiations the parties will have to hire new attorneys. 

In the Collaborative Law process, the parties usually meet with the lawyers in conferences, with the expectation that there will be cooperation, openness and honesty (with the expectation of verification).  As one Collaborative Law group wrote:

"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." (Courtesy of the South Texas Collaborative Family Law Group)

WHAT ARE THE RISKS?

If the parties cannot resolve the dispute, then the collaborative law attorneys must withdraw from the case – they cannot represent a party in the collaborative law process and then in a contested court proceeding.  If the collaborative law negotiatioins fail, and the parties want a trial, then they have to incur the additional expense of hiring and familiarizing a new litigation lawyer about the case.

WHAT IF I HIRE MR. BAUM BUT THE OTHER PARTY DOES NOT HAVE A COLLABORATIVELY TRAINED LAWYER?

If you choose to go the collaborative law route, and the other party is unrepresented,then Mr. Baum will write to the other party, explain what collaborative law is and provide the other side with a list of collaboratively trained lawyers (civil or divorce attorneys) she/he can consult if the collaborative law process interests her/him.

Where Can I Learn More About Collaborative Law?

There are several excellent websites to consult, especially:

 

Collaborative law is based on a simple fact: 95-97% of all separation and divorce cases settle before trial. So several years ago, some family litigation lawyers in Minnesota asked, ‘since the overwhelming odds are that the divorce case is going to settle anyway, why should lawyers act as if they are going to litigate the case, when the case will almost certainly settle before trial? Why not deal with your case in a realistic manner, so that the lawyers conduct your case in a civilized manner, negotiating from the start rather than sending letters, pleadings. discovery and motions back and forth through litigation? Why not save the clients' time, money and heartache by entering the case with the goal of helping the parties to settle, rather than with the fiction that a judge will actually hear the case?’

 

In the collaborative law process, you make the decisions without relying on a judge or arbitrator to make the decisions for you. On the other hand, unlike the mediation process the negotiations take place with either the lawyers or divorce coaches present, thereby providing more direct support to the parties as the negotiations are conducted. In Collaborative Law, you hire an attorney specially trained in the art of negotiation and who understands the shift between being a negotiation attorney and a litigation advocate. There are oftentimes also specially trained “divorce coaches” and a financial advisor involved the process.
 
The approach from beginning to end is different in a collaborative law case. In the beginning, the parties and attorneys sign an agreement that the attorneys cannot litigate the case for the parties, so if it is not successfully resolved in negotiations the parties will have to hire new attorneys. Collaborative law is a process designed for negotiation, not for litigation. There is no formal discovery, motions or trial.
 
In the Collaborative Law process, the parties usually meet with the lawyers in conferences, with the expectation that there will be cooperation, openness and honesty (with the expectation of verification). As one Collaborative Law group wrote:

 

“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.”

 

Courtesy of the South Texas Collaborative Family Law Group

If the parties cannot resolve the dispute, then the collaborative law attorneys must withdraw from the case—they cannot represent a party in the collaborative law process and then in a contested court proceeding. If the collaborative law negotiations fail, and the parties want a trial, then they have to incur the additional expense of hiring and familiarizing a new litigation lawyer about the case.

In a “pure” collaborative law case, you must agree that the collaborative attorney will not represent you in a contested court proceeding if the negotiations fail. However, Bob has successfully represented clients in “collaborative style” (sometimes called “cooperative style” cases), where the parties agreed to follow the collaborative law principles without agreeing to the attorney disqualification statement.

No, collaborative law requires that both parties’ lawyers be specially trained in the collaborative law process. Bob Baum was one of the first attorney’s in Maryland to be trained in collaborative law and is a leader in the collaborative law movement (see biography). While collaborative law is used widely in Canada, Europe and parts of the United States (particularly Massachusetts, California and Texas), there are probably less than two hundred collaboratively trained lawyers in Maryland. There are even fewer collaboratively trained consultants such as financial planners, real estate (mortgage) consultants and therapists. Yet the collaborative law process requires that there be two collaboratively trained attorneys in the case, and that they find the appropriate consultants to bring into the case if necessary.

If you choose to go the collaborative law route, and your spouse or partner is unrepresented, then Bob will write to him or her, explain what collaborative law is and provide your spouse or partner with a list of collaboratively trained lawyers he or she can consult if the collaborative process interests him/her.

There are several excellent website to consult, especially:
 
The largest international collaborative law group, the International Association of Collaborative Professionals,
www.collaborative practice.com/
 
The Statewide Maryland collaborative professionals group (of which Bob was a founder and board member) is
www.marylandcollaborativepractice.com/
 
The largest Montgomery County collaborative law group, (which Bob also helped establish and served on the Board) is
www.collablawmaryland.org/