Litigation
A word which means a lawsuit of any kind, but
usually used to imply a court fight.
Four-way meeting
Two attorneys and two clients getting together
to discuss the status and next steps in the
process. May also mean two clients getting
together with the two divorce coaches to work
through the emotional process.
Depositions
A formal question and answer session in which an
attorney asks questions of a party and that
party's sworn testimony is recorded word for
word by a court reporter, for later use at
trial.
Written
interrogatories
A formal written document which asks questions
of a party who must give written answers
truthfully and under oath. Can be used just like
sworn testimony.
Subpoenas
A legal document which attorneys are permitted
to use to require the appearance of a witness at
any legal proceeding in order to give sworn
testimony.
Interest-based
negotiation
Instead of each side taking a "position" and
arguing his/her position to accomplish his/her
goals, each side discusses and explores his/her
interests (i.e. WHY he/she wants something
rather than WHAT he/she wants).
See
Glossary for definitions
of terms and actions that are mentioned
throughout this website
Exactly
what are the various types of divorce?
You can
review
the various types of divorce approaches in
detail by clicking here.
How and Why Collaborative
Family Law Works
Each party hires a specially trained collaborative attorney, and other collaborative professionals as needed, and all work together in a cooperative, non-adversarial process with one goal: to achieve a mutually acceptable agreement.
You and the other party and your respective attorneys promise in writing to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith as you negotiate toward a settlement. All of you also promise to refrain from the threat or use of litigation.
A key component of a successful collaborative process is the four-way meeting. It's a structured setting in which both parties and their attorneys communicate and negotiate directly with one another.
The four-way meeting - and the whole collaborative process - is a team approach to resolving family law disputes. If and when you need additional collaborative professionals, such as mental health or financial specialists, you bring them into the process.
Because everyone involved is committed to voluntarily disclosing necessary information, formal discovery tools, such as depositions, written interrogatories, or subpoenas, are unnecessary. And there is no place for argumentative, accusatory, or threatening letters between attorneys.
Negotiation Defined
In the collaborative process, you'll hear the term interest-based negotiation. It's an approach to dispute resolution which helps redirect the parties from wanting a certain outcome, or taking a certain position, and refocuses them on underlying needs, wants, values and objectives.
When the parties agree on what's truly important to them - for example, if both of you want your children to stay in their current school district - you engage in interest-based negotiation. That way, you build the resolution that best addresses your common objective. Interest-based negotiation encourages win-win oriented discussions, creative problem solving, and settlements that meet the needs of all members of the family.
When an Agreement is Reached
Once an agreement is reached on all of the issues, the agreement is spelled out in a written document. The document is filed with the court and the parties proceed to an uncontested final court hearing. At the hearing, the court approves the agreement and grants the judgment.
How the Collaborative Process is Different than Litigation or Mediation
Litigation is the traditional divorce process when both parties hire attorneys to provide legal advice and represent the positions of their clients in negotiations and court hearings. By its very nature, litigation is an adversarial process because each attorney advocates positions based on their client's often-competing personal wants, needs and viewpoints. The parties communicate primarily through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals.
The process may involve the use of formal legal procedures, known as discovery, to secure financial and other relevant information. Discovery may include the use of depositions (testifying formally before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues.
Further, each party may hire experts to support their positions. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.
If the parties dispute the legal custody or physical placement schedule of their children, the court will appoint a third attorney, called a Guardian ad Litem, to participate in the case as an advocate for the best interests of the children. Ultimately, if agreements are not reached, parties and other witnesses testify before a judge who makes a ruling on each disputed issue. The judge's decision is limited by evidentiary rules and statutory requirements.
Most litigated divorces are eventually settled, but often only after substantial time and money has been spent in the midst of conflict. Further, both parties often find they are dissatisfied with the outcome and are likely to return to court to change the settlement or resolve ongoing disputes.
In mediation, the parties hire a neutral third party to assist them in reaching agreements concerning their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator need not be a lawyer and does not represent either party. Whether the mediator is a lawyer or not, the mediator cannot provide legal advice. You can use a mediator if you have hired an attorney or if you are not represented by an attorney at all.
In mediation, the parties may communicate with one another directly in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle.
If the parties proceed in mediation without attorneys, they are responsible for preparing all the required forms for the court, though a mediator may help prepare forms for the parties. The parties must also appear on the record at court for their final hearing to have their agreement approved and the divorce judgment granted.
Collaborative attorneys serve an active and direct advocacy role in all stages of the settlement process. Each attorney functions as an educator, advisor and advocate for the client and assists the client in developing their interests, understanding information and legal analyses, brainstorming options and communicating during negotiations. The attorneys are there to level the inequities of knowledge, power and communication ability inherent in many relationships.
In contrast to the attorney's role in the litigation model, collaborative attorneys function as settlement specialists rather than adversarial advocates. The process requires both parties and their attorneys to actively listen and understand the other's interests, needs and goals since progress is made only when all parties work together to reach agreements within the collaborative framework.
