The Collaborative Process movement started in the Minneapolis metropolitan area and spread throughout the rest of the United States, Canada, Australia and Europe. In the Collaborative Process, Attorneys, their clients and neutral professionals work together in non-adversarial ways to resolve the couple's financial and parenting issues.
The couple begins the process by signing what is known as a Participation Agreement indicating their commitment to resolve all differences and issues related to the separation or divorce outside of court. The agreement is a contract that requires full disclosure of all financial information by both partners, transparency, and interest-based negotiation. If the issues cannot be resolved, and the partners choose to take the matter to court, both Attorneys are required by the agreement to withdraw from the process.
To start a Collaborative Divorce:
- A Collaborative Divorce may begin by each party choosing and hiring their own Collaborative Attorney. Then, the rest of the team is assembled.
- A Collaborative Divorce may also begin with each party individually or jointly selecting and hiring a Collaborative Coach. If they have children, they may jointly hire a Collaborative Child Specialist. Then, the rest of the team is assembled.
- A Collaborative Divorce may also begin with the parties together hiring a Collaborative Financial Specialist. Then, the rest of the team is assembled.
- Once the Collaborative Team members are hired, they communicate with each other to make sure everyone is on the same page with the parties and schedule the initial Collaborative meeting where the parties sign the Collaborative Participation Agreement, share their interest, goals and needs, and begin planning their family's "road map" to resolution.
- Often, prior to the initial Collaborative meeting and throughout the process, the parties meet with their shared or individual Collaborative Coach to address communication issues and emotional undercurrents so that they are at their best to discuss, evaluate and make decisions in the legal and financial meetings.
- Also, prior to the initial Collaborative meeting and throughout the process, the parties may meet together with a Collaborative Financial Specialist, to begin to identify short and long term financial goals and determine the types of information and documentation needed.
The number of meetings with one or more of the professionals is determined on a case-by-case basis in accordance with the parties' needs.
All Collaborative cases involve two Attorneys, one for each party. Depending on the complexity of the case and whether children are involved, it may be prudent for the parties to utilize a “team” approach that would involve a Collaborative Financial Neutral, one or two Collaborative Divorce “coaches” – specially-trained Mental Health Practitioners, and a Collaborative Child Specialist. Many clients are initially hesitant to use more than just Attorneys because of a perceived increase in cost by having more professionals involved. However, as explained below, the skill sets of the various professionals in the “team” model can be used to focus resources where they can do the most good and deliver excellent results while keeping costs low.
A Collaborative Divorce is typically less expensive, but not necessarily. The total cost of a Collaborative Divorce depends on a number of factors, including the difficulty and number of issues to be resolved, your Collaborative professionals’ hourly rates, and the willingness that you and your spouse have to work constructively with each other to resolve the issues emanating from your marriage.
While a Collaborative Attorney or other Collaborative professional cannot give you a set price because he or she does not know in advance how involved your matter may be, it is reasonable to expect a clear explanation of the billing policies of all the Collaborative professionals involved in your case. These should also be communicated to you in writing in the form of an engagement or retainer agreement that you execute with your professional(s).
The Collaborative Process often can work to maximize the “bang for your buck” that you get from each professional. For example, in many Collaborative cases, much of the work of determining a parenting schedule is often done by the parties with the guidance of their Collaborative Coaches. This frees the Attorneys, with their generally higher hourly rates, to focus on more “legal” matters.
When considering the costs of the various way of divorce, one should also consider the emotional costs and trust lost in the protracted adversarial battle common in a “traditional” divorce. Your divorce case may well not end with the Final Order being entered, as parties may need to return to resolve issues months, years, or even decades into the future. Certainly if there are children involved, you will have ties to your spouse that may extend for the remainder of your life. The way in which your divorce is resolved can often have as much or more of any impact on your future as the actual “who-got-what” result.
The Collaborative Process changes some aspects of the traditional Attorney-client relationship. Your Collaborative Attorney is still your advocate and advisor, but he or she will be focused on working with your spouse’s Collaborative Attorney to develop a resolution that both you and your spouse can live with, rather than focusing on “out-litigating” your spouse’s Attorney.
In the Collaborative Process, legal advice is generally given at meetings with both sides present in the open. This way, both sides have the opportunity to know exactly how their Attorneys believe the law may affect their case. This does not mean both Attorneys will always agree, but it does mean that when Attorneys disagree, those disagreements will be communicated to all parties so everyone is working with the same information.
This does not mean that everything you disclose to your Attorney must be disclosed to the other side. However, openness and honesty are hallmarks of the process. Withholding information to gain advantage is not a part of the process. If you disclose something to your Attorney that he or she believes must be communicated to the other side, he or she will advise you of that and discuss with you how best to deal with it.
No. If your case falls out of the Collaborative Process, your Collaborative Attorney may not represent you in any ensuing litigation. This ensures the parties and Attorneys are working constructively with each other in the Collaborative Process and not working to gain an advantage that could be perhaps be put to use in later litigation.
Both parties must agree to use the Collaborative Process for it to function. Encourage your spouse to visit this website and get information for him or herself. Encourage them to consult with a Collaborative Attorney from this site, as Attorneys who are not Collaboratively trained may not be familiar with the process. Although divorce is a very emotional process, and some spouses may initially focus on “winning” or harming the other, at the end of the day some decision has to be made about major issues that will affect you and your children for years to come. Litigation means that a stranger to your lives – a judge – will make those decisions for you. The Collaborative Process means that you and your spouse will make those decisions.
For more information, please view the Knowledge Kit below for a concise document that can educate your spouse on the benefits of the Collaborative Process.
In Mediation, an impartial third party (the Mediator) assists the negotiations of both parties and tries to help settle your case. However, the Mediator cannot give either of you legal advice or be an advocate for either side. If there are Attorneys for each of you, they may or may not be present at the Mediation sessions, but if they are not present, then you can consult them between Mediation sessions. When there’s an agreement, the Mediator prepares a draft of the settlement terms for review and editing by both you and your Attorneys.
Collaborative Practice allows you both to have Attorneys present during the negotiation process to keep settlement as the top priority. The Collaborative Attorneys, who have training similar to Mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the Attorneys and reviewed and edited by you both until everyone is satisfied.
Both Collaborative Practice and Mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If Mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your Attorney have agreed. In Collaborative Practice, the Collaborative Attorneys and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative Attorneys and other professional team members are disqualified from participating in litigation if the Collaborative Process ends without reaching an agreement. Your choice of Mediation or Collaborative Practice should be made with professional advice.
In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce you often come to view each other as adversaries, and your divorce may be a battleground. The resulting conflicts take an immense toll on emotions—especially the children’s. Collaborative Practice is by definition a non-adversarial approach. Your Attorneys pledge in writing not to go to court. They negotiate in good faith and work together with you to achieve mutual settlement outside the courts. Collaborative Practice eases the emotional strains of a breakup and protects the well-being of children.
The guiding principle of Collaborative Practice is respect. This respectful tone encourages you to show compassion, understanding, and cooperation. Collaborative Professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
When you decide on a Collaborative Practice divorce, each of you hires a Collaborative Practice Attorney. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your Attorneys. Additional experts, such as Divorce Coaches, Child Specialists, and Financial Specialists, may join the process or are perhaps the first Collaborative professional that you see. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children if you have them. Mutual problem-solving by all parties leads to the final divorce agreement.
A Collaborative case proceeds in an orderly, planned, and agreed upon manner.
- In a Collaborative Divorce, meetings are scheduled in advance and follow an agreed agenda.
- Negotiations take place during face-to-face meetings with both parties, their Attorneys and other team members.
- The Collaborative Professionals guide settlement meetings, gather documents, confer with their clients, prepare parties to share their interest, goals, and needs, answer questions, and manage the flow of the case toward a mutually acceptable resolution.
- At the initial meeting both spouses sign the Collaborative Contract (also called the Collaborative Participation Agreement), and the Collaborative Divorce Process begins with each spouse identifying what is important to them.
- In a series of subsequent meetings with one or more members of their Collaborative Divorce team, the parties gather the needed information, and with the assistance of the Collaborative Professionals, all information is shared, all questions are asked and answered.
- For each issue to be resolved, the clients have the information they need to develop options. This is done by brainstorming all possible solutions, then evaluating and agreeing upon what works best for each party and their family. In doing so, the clients may settle all property, support and matters related to the children (if any) without going to court.
- The Collaborative Attorneys draft needed documents and court papers to finalize a no-fault divorce and implement the property, support and parenting (if needed) agreements.
- Throughout, you have the opportunity to work with the expert most trained to assist you when their help is needed. Your Collaborative Divorce team has specialized training to help you:
- Learn better ways to communicate.
- Deal with your emotions.
- If children are involved, address parenting and time-sharing concerns.
- Develop a financial plan for the short term and for each of you for the future.
- Answer questions you have about divorce.
- Make informed choices for the future.
- If children are involved, create a parenting plan.
- Reach agreements and prepare the necessary documents (property settlement agreement, deeds, retirement orders, etc.).
- Obtain the no-fault divorce.
- Even though the case is complete, the Collaborative Team remains available if issues arise in the future.
- Collaborative Coaches help the parties to manage emotions and maintain and improve communication and conflict resolution skills.
- Collaborative Coaches, though trained as counselors or therapists, do not provide therapeutic services to Collaborative clients. They can make referrals to therapists if such services are needed or desired.
- Collaborative Coaches assist the parents with developing a parenting plan for their children with input from the Collaborative Child Specialist.
Although your personal therapist may be valuable to you, your Collaborative Coach plays a different role. In addition to being able to communicate clearly with the other team members, your Collaborative Coach’s role is to guide you through the process.
Collaborative Child Specialists are the "voices of the children." They meet with the parents. They usually meet with each child. And then, they share, with the parents, insights about how the children are doing so the parenting agreements best meet the needs of the children. They have training and experience in child development so can educate the parents about how the parenting plan can address the developmental needs of each child.
- The Collaborative Financial Specialist helps the team have neutral conversations about the money, the property division, budgets and support needs - all of which can be highly emotional issues.
- The Collaborative Financial Specialist can efficiently gather from the clients the needed financial documentation, organize and summarize and present it to the Collaborative Attorneys and clients in a neutral manner.
- As settlement options are explored, the Collaborative Financial Specialist may evaluate how the proposed divisions address the clients' financial goals and how they may or may not provide for each client in the future.
- A Collaborative Financial Specialist can educate the spouse who does not have the same knowledge and understanding of the family finances so that both clients are capable of participating in brainstorming options, evaluating and making the financial decisions needed to reach a resolution that is acceptable to both.
- A Collaborative Financial Specialist has credentials such as Certified Financial Planner (CFP) or Certified Public Accountant (CPA) and may also hold a Certified Divorce Financial Analyst (CDFA) certificate. The Collaborative Financial Specialist may address such topics as income tax and cash flow issues, executive compensation, stock options, cost basis analysis, retirement planning, estate planning, education expenses funding, investment allocation and income generation, and risk management issues such as life, disability and property and casualty insurance.
You and your partner commit in the Participation Agreement to voluntarily and completely disclose financial information and to provide supporting documentation such as tax returns, mortgage statements, pay stubs, credit card statements, et cetera.
Typically, yes. Attorneys for the couple can ask the court to have the case placed on inactive status while the Collaborative Process continues.