Most people facing the breakup of a marriage or domestic partnership tell us they do not want to litigate – to have to go to court where a judge or master will make important decisions about parenting arrangements, dividing assets, determining support awards and the gamut of issues involved in divorce.
At the core of collaborative practice is the parties’ agreement to settle their financial and any custody matters without resorting to adversarial litigation. Instead, the parties and their attorneys hold a series of meetings to identify, analyze, negotiate and resolve the specific issues involved in the case, often enlisting neutral financial experts to determine options for dividing the marital estate and for providing funds for each party’s and the children’s reasonable needs. Likewise, the lawyers might enlist a neutral child custody expert (a mental health professional) to work directly with the family to work out parenting schedules and other decisions concerning the children. Sometimes each party is paired with a trained “coach” who helps that person process emotional reactions that could interfere with the ability to absorb information, to complete essential tasks and to make sound decisions.
Both parties, their lawyers, and any neutral experts agree in writing that the professionals will withdraw from the process if either party decides to bring a dispute before a court. This important feature of collaborative practice provides a strong incentive to the parties to continue until an agreement is reached; having to start from the beginning with a new lawyer and other experts adds significant cost and increases the time to reach resolution. Whatever the scope of the controversy, there are many benefits to proceeding collaboratively. The combined cost to the parties is likely to be much lower for the family unit than going to court and the process can move more quickly than traditional litigation. The greatest benefit is the ability of the process to focus on the interests of every member of the family and not just debate the narrow legal positions two parties might assert.
Out of Court Settlements