Collaborative Law
Collaborative law refers to a matrimonial dispute resolution process whereby both parties and counsel commit themselves to resolving their differences fairly and equitably without resort or threat of resort to the courts. In recent years more and more New York collaborative divorce attorneys and divorcing couples have been drawn to this process as a cost-efficient, effective and amicable way of reaching agreements which works for both of the parties and their families.
The assumptions underlying the growth of this practice are as follows:
- The adversarial judicial system is often ill-equipped to handle the emotionally charged process of dissolving a marriage;
- Many divorcing couples want to avoid litigation, yet are distrustful and/or fearful of the mediation process; and
- Mediation, as a marital dispute resolution method, sometimes poses dangers in terms of power imbalance, absence of knowledgeable and informed consent, ability of mediator to remain neutral, etc.
The collaborative attorneys representing the parties in this model agree to assist them to resolve the issues in dispute using cooperative strategies rather than adversarial techniques and litigation. Attorneys utilizing this settlement model agree to take cases, on a case-by-case basis, for settlement purposes only. The model differs from traditional representation in ways designed to create a positive context for settlement. Lawyers employed in this practice agree in advance:
- To remove litigation as an option. If settlement discussions fail, the parties must hire separate litigation counsel if they choose to go to court. NY Collaborative divorce lawyers do not use the threat of litigation as a negotiating tool;
- To complete disclosure with full documentation but without formal proceedings;
- To use joint experts with respect to valuation questions;
- To settle custody differences without subjecting either the parties or the children to court-ordered forensic evaluations; and
- To focus their efforts and skills on creative problem solving and on obtaining win/win results which insofar as possible meet the legitimate interests of both parties and maximize the overall result.
Other aspects include an emphasis on four-way meetings, reasoned positions, joint creation of options, and a point of view which includes both attorneys and both parties as part of a settlement team where flexibility and sensible compromise are encouraged.
Several of the Berkman Bottger Newman & Rodd, LLP attorneys are members of the New York Collaborative Law Group and have substantial experience working successfully with the model. For a more comprehensive discussion of collaborative law in the context of the divorce process, see the New York Law Journal article co-authored by our partner, Barry Berkman.
