Family Law

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Collaborative Divorce

An Alternative to Litigation

Collaborative divorce is an alternative dispute resolution (ADR) process that enables couples to negotiate their divorce outside of a courtroom setting. In this process, each spouse hires their own attorney—each trained in collaborative law—and may also engage additional professionals such as financial advisors or child specialists. The goal is to reach a mutually acceptable agreement through cooperation and transparency.

How Collaborative Divorce Differs from Mediation

• Representation and Roles:
• Mediation: Involves a neutral third-party mediator who facilitates discussion and negotiation. The mediator does not represent either party, and parties may consult their own attorneys as needed.
• Collaborative Divorce: Each spouse is represented by their own attorney who actively participates in negotiations. The process is structured so that all professionals involved work together toward a settlement.
• Process and Structure:
• Mediation: Focuses on helping the parties communicate and find common ground, while still leaving open the option to pursue litigation if an agreement cannot be reached.
• Collaborative Divorce: Requires both parties to commit to a collaborative process by signing a Participation Agreement. This agreement creates a framework where all parties work together to resolve issues without resorting to the adversarial courtroom process.
• Team Involvement:
• Mediation: Typically centers on the mediator’s role with optional legal counsel.
• Collaborative Divorce: Involves a coordinated team approach that can include attorneys, financial experts, and child specialists, ensuring all facets of the divorce are addressed collaboratively.

Attorney Withdrawal When Litigation Becomes Necessary

A key feature of the collaborative divorce process is the clause in the Participation Agreement that requires attorneys to withdraw if the collaborative process fails and the case moves to litigation. This requirement exists for several reasons:

• Preserving the Integrity of the Process: The withdrawal clause ensures that all participants remain fully committed to resolving disputes outside of court. Continuing with the same attorney in litigation could undermine the non-adversarial, cooperative spirit that collaborative divorce is designed to foster—even if the attorney is qualified to litigate.
• Avoiding Conflicts of Interest: Removing the collaborative attorneys helps prevent any potential conflicts of interest. This ensures that, if litigation becomes necessary, both parties start the adversarial process on an even footing with new legal counsel who are focused solely on courtroom litigation.
• Voluntary Commitment to Collaboration: By signing the Participation Agreement, both parties voluntarily agree to pursue a collaborative process first. Should the process fail, the agreement mandates that each party secure new representation for litigation, reinforcing the commitment to try resolving issues collaboratively before resorting to the courts.

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