Collaborative Law: What You Really Need To Know
Collaborative law is a modern way of resolving disputed issues. It is an alternative method of dispute resolution that takes the matter out of the context of traditional litigation (position-based bargaining) and incorporates an interest-based negotiation model. The goal of the collaborative law process is to reach a resolution of all disputed issues that is win-win for all parties. It is a legal process that allows the parties to reach a fair settlement. In collaborative law, the parties agree to make a good faith effort to work together in an attempt to find mutually acceptable solutions.
Collaborative law empowers the parties to have full control over the outcome of their legal disputes without judges or arbitrators deciding what’s in their best interest. It offers a safe and dignified environment for negotiations to take place and thereby reduces the conflict often associated with litigation and, consequently, minimizes the impact on the people involved.
The collaborative process can be effective in resolving a wide range of issues including division of assets, post-divorce issues including parenting disputes, and even premarital agreements.
While the parties remain in control of the outcome in collaborative divorce they are not alone. The parties have the help and guidance of their respective collaborative attorneys. In addition, neutral collaborative professionals assist with the process and finding amicable win-win solutions. Because these experts are shared and are working in concert to find solutions, the collaborative law process can present cost savings over the traditional litigated process where each party hires their own experts to support their position.
In North Carolina, collaborative law is governed by the North Carolina General Statutes §50-70 and §50-79 for collaborative law proceedings.
Collaborative Law in NC
Collaborative law is a procedure where a husband and wife who are separated and seeking a divorce, or considering separation and divorce, with the help of their lawyers, agree to do their best to resolve the disputed issues by agreement. The process must include an agreement by the parties that they will attempt to resolve the issues without court intervention. In addition, the process includes an agreement that the parties’ attorneys will not represent them in future litigation with the exception of asking the court to approve the collaborative law settlement agreement. (NCGS §50-71)
The collaborative law agreement should be signed by all parties and their respective attorneys and should include a provision for the attorneys to withdraw if the collaborative process is unsuccessful in reaching a settlement of the disputed issues. (2003-371, 2. 1.)
While the collaborative law agreement is in effect it will pause applicable legal time periods, such as statutes of limitations, filing deadlines, and other time limitations. This allows the parties to focus on creating solutions to the issues without arbitrary deadlines.
What Is Contained In The Collaborative Law Agreement?
The collaborative law agreement in North Carolina is an agreement that ensures all parties participating in the process act in good faith towards finding a resolution of the issues. The agreement states the goals of the process, ensures that the parties use the collaborative law procedures pursuant to the North Carolina Statutes and that negotiations will be conducted in an atmosphere of honesty, cooperation, integrity, and professionalism.
The parties agree to full and voluntary disclosure of all relevant information and commit to complete honesty in expressing their needs and desires throughout the process. The parties agree to insulate the children as much as possible from involvement in the disputes and to make every effort to reach amicable solutions that promote the best interests of the children.
In addition, the parties commit to protecting the privacy, respect, and dignity of all people involved. The collaborative participation agreement also limits the involvement of the attorneys to the collaborative process.
What If The Collaborative Law Process Doesn't Work?
There is a misconception that you forfeit your right to court if you choose to use collaborative law. That is not true. In North Carolina, if you try to reach a settlement through the collaborative process and an agreement is not reached, the parties may seek resolution through the court system at any time, If a civil action was already pending in the collaborative law process fails then, upon notice to the court, the court may enter orders as appropriate.(NCGS §50-76)
As mentioned earlier, if the collaborative divorce process doesn’t work, and litigation is filed, the attorneys representing the parties in the collaborative law proceedings will not be able to represent them in the litigation process. The collaborative attorneys must withdraw according to the collaborative law agreement. The parties will need to hire new attorneys for litigation.
Collaborative Law Protects Your Privacy
One of the benefits of collaborative divorce is that the negotiations take place in a private setting and are confidential. In fact, statements and communications made or that have arisen from the collaborative law process are not admissible in future court proceedings should the collaborative law process breakdown and the parties end up in litigation. This includes written or verbal communications as well as any work created by the neutral collaborative experts, unless, of course, the parties are in agreement.
What Are The Benefits Of Collaborative Law?
Many of the benefits of the collaborative law process are contained within and result from the collaborative law participation agreement.
Because all parties agree to full transparency and disclosure of all documents and information, the parties can focus on solutions without worrying that the other is misrepresenting information.
By the nature of the process and the collaborative law agreement, collaborative divorce fosters respect and cooperation. This is possible because the negotiation process is interest based rather than position based. Position-based negotiation is what leads to the typical posturing and mudslinging we often see in litigated divorce.
While the emotional devastation of an adversarial divorce can affect everyone involved, children seem to get hit the hardest. This is especially true when the parties of an adversarial divorce use the children as leverage.
The collaborative law agreement strives to protect children because the parties agree to insulating them from the divorce negotiations and thereby minimizing the impact of the divorce process on them.
Third-party experts are often needed to resolve disputed issues. In a traditional divorce, each party will hire their own experts to buttress their own position and dispute the others position. Not only does this fan the flames of contention but it also increases the cost of the overall divorce. In a collaborative divorce, the parties share the work and cost of outside experts. Because these experts, or collaborative professionals, are neutral parties, divorcing spouses can be comfortable sharing the work product and recommendations. These collaborative professionals may include a child specialist, a financial professional, and divorce coaches.
History of Collaborative Law
This unique approach to dispute resolution was created in 1990 by Minnesota family lawyer Stuart Webb. After working as a traditional divorce attorney for about 18 years, Stuart Webb became frustrated by the damage being inflicted upon families by the traditional divorce process.
Stuart Webb noted that even though divorce will always be marked by disappointment, anger, hurt, and betrayal, the process itself didn’t need to add to the pain. He noted that the research reveals that it’s not so much that a couple is getting a divorce that has such a negative impact on the children but rather how a couple conducts themselves during a divorce. 1.
In fact, he became so sick of it that he actually enrolled in college to begin a new career. Before closing his law practice forever, he decided that he would first try to find a better way of handling divorce. The collaborative law process was born out of that journey. Stuart Webb went on to write The Collaborative Way To Divorce – The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids – Without Going To Court.
Since that time the collaborative law movement has spread to the United States, Europe, Canada and Australia. More than 22,000 lawyers have been trained in collaborative law.
Is Collaborative Law Right For You?
When you weigh the benefits of the collaborative process and consider what is at stake, don’t you owe it to yourself and your family to find out if collaborative law could work for you? It doesn’t work for everyone. It isn’t right for everyone. The best way to find out is to make an appointment with a North Carolina lawyer, experienced in representation in the collaborative process, who can review your particular circumstances, answer your questions, advise whether collaborative divorce is an option for you.
1. Ousky, R. and Webb, S. (2014). The collaborative way to divorce. New York: Plume.