While a couple may only be divorced by a Supreme Court judge in the State of New York, how you proceed with obtaining one is your choice. It need not be a hard-fought, conflict-ridden battle.
Collaborative law is a voluntary, contractually based alternative dispute resolution (“ADR”) process for parties who prefer to negotiate a resolution, rather than go through the litigation process. The distinctive feature of collaborative law, compared to mediation, is that lawyers represent parties during negotiations. Collaborative lawyers do not represent the party in court, but only for the purpose of negotiating agreements. The parties agree in advance that their lawyers will not continue to represent them in court if the collaborative law process ends without complete agreement.
The basic ground rules for collaborative law are determined in a written agreement, called a collaborative law participation agreement. The agreement generally states that the parties and their attorneys will conduct themselves in a respectful way toward one another. They require that everyone involved be honest and will not take advantage of the other side’s errors or oversights. They mandate that the parties keep all communication during the negotiation process confidential. The parties and professionals pledge to adhere to the spirit of collaboration and agree to end the process if they cannot continue in that spirit. The participation agreement ensures that if a party seeks judicial intervention, or otherwise terminates the collaborative law process, the disqualification requirement takes effect. Parties agree that they have a mutual right to terminate collaborative law at any time without giving a reason.
The goal of collaborative law is to encourage parties to engage in problem-solving, rather than positional negotiations. A positional approach is when the parties use the negotiation process as a contest to be won by one side at the expense of the other. Whereas a problem solving approach involves parties that view the dispute as a joint problem that needs to be solved together.
Collaborative law is often used for family disputes, when the parties will most likely continue to have a relationship beyond the resolution of their dispute. Often non-legal experts will become involved to enhance the collaborative process and help find the best possible solutions that work not only for the parties but, often, for family members who are not parties to the dispute.
All of these protocols are designed to encourage the open exchange of information without the threat of litigation. Research has found that a problem-solving negotiation approach often is more effective than an adversarial one. The benefit to lawyers is the satisfaction of knowing that your client has been well served not merely legally, but holistically.
Attorney, Jones Morrison, LLP