What is the difference between Collaborative Law and mediation?
In mediation, there is one neutral professional who helps the disputing parties try to settle their case. Mediation can be challenging where the parties are not on a level playing field with one another, because the mediator cannot give either party legal advice, and cannot help either side advocate a position. Collaborative Law was designed to deal with these problems, while maintaining the same absolute commitment to settlement as the sole agenda.
Each side has legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the direct participation of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.
How is Collaborative Law different from the traditional adversarial process?
In Collaborative law, all participate in an open, honest exchange of information. Neither party takes advantage of the miscalculations or mistakes of the others, but instead identifies and corrects them.
- In Collaborative law, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process.
- Both parties in collaborative law use joint accountants, appraisers, and other consultants, instead of adversarial experts.
- In collaborative law, a respectful, creative effort to meet the legitimate needs of both (parties) replaces tactical bargaining backed by threats of litigation.
- In collaborative law, the lawyers must guide the process to settlement or withdraw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or is tried.
- In collaborative law, there is parity of payment to each lawyer so that neither party’s representation is disadvantaged vis-a-vis the other by lack of funds, a frequent problem in adversarial litigation.
My lawyer says she settles most of her cases. How is collaborative law different from what she does when she settles cases in a conventional law practice?
Any experienced collaborative lawyer will tell you that there is a big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law cases settle figuratively, if not literally, "on the courthouse steps." By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both "buyer's remorse" and "seller's remorse" are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do.
Nothing could be more different from what happens in a typical collaborative law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.
Excerpted from Handbook for Clients: An orientation to …dispute-resolution options available to clients © 2001 American Bar Association |
|
