Collaborative family law seeks to smooth the transition into the post-divorce period
By Cozette Vergari
Partner, Vergari & Fu, LLP
Los Angeles Lawyer/December 2003
As a marriage and family fall apart, the act of stepping into the traditional family law courtroom, with its adversarial orientation, increases the stress and anxiety of separation and divorce. Until recently, mediation has been the main alternative. However, over the last decade, a third approach has gained momentum nationwide and in the last few years has become a successful and viable alternative to litigation in Los Angeles County.
Collaborative family law seeks to ease the pain of divorce through a negotiation process that takes place completely outside the walls of a courtroom. Collaborative divorce is an inter-disciplinary approach that gives family law attorneys the opportunity to interact collabor-atively with other mental health and financial professionals. These professionals work as a team to provide a safety net for the parties who are involved in a divorce. The team works to minimize conflict and to assist in the restructuring from a one-family unit to a two-family, interactive system.
Collaborative family law sets a stage on which attorneys for the parties work together, in a cooperative rather than adversarial setting, to assist them during the process of dissolving their marriage. In fact, the parties and the attorneys enter into agreements that commit everyone to the resolution of all marital issues without entering a courtroom. There is a commitment not to litigate.
In collaborative family law, each party to the divorce is represented by legal counsel. Negotiations involve attorneys and mental health-care professionals as well as accountants and financial planners. The collaborative process considers the needs of the entire family and is designed to resolve all levels of conflict peacefully.
The mental healthcare professionals, sometimes referred to as coaches, play a crucial role in this nonlitigious process. They address the emotional fallout that one or both parties face.
Children of the marriage can also directly benefit from the involvement of the coaches. They are committed to helping each side understand and validate the feelings and concerns of the other as well as their own. Each party may select his or her own coach or the parties may agree to have only one coach assist in the collaborative process.
Financial advisers are brought into the collaborative negotiation to educate the parties in the various ramifications of the division of property and assignment of support obliga-tions. Trained in the sensitivities of the collaborative forum, their objective advice helps to foster a more businesslike approach to the division of assets and debts.
Traditional family law litigation re- inforces antagonism between spouses, which adversely affects the children, who become victims without recourse. The litigious process between divorcing parents often overlooks representation of the minor children all together. It fails to address the co-parenting of minor children under a split parenting system. In contrast, this new movement seeks to assist the family in the transition into the post-divorce period. The collaborative process better effectuates resolution, through cooperative restructured parenting, than the adversarial atmosphere in family law litigation.
Until recently, mediation was the most common alternative to litigious divorce. Collaborative family law takes mediation a step further because both parties’ attorneys act as mediators. Although each attorney is the legal adviser to only one party, the approach from both attorneys is not to attack or bully the opposing party but rather to assist both parties in understanding the law. Moreover, both attorneys work to create a non-threatening, safe environment for both parties.
At first glance, one may think that the involvement of so many professionals would increase the expense of divorce. On the contrary, this negotiation settling – typically meetings involving four to eight persons – can actually facilitate a more expeditious resolution without the voluminous paper blitzes and costly time spent in a courtroom war. Thus the collaborative process can actually reduce the overall cost of the divorce.
The first seed of collaborative family law was planted in Minneapolis, Minnesota, in 1990 by Stuart Webb. Collaborative family law has since grown into a nationwide movement, with lawyers in at least 34 states engaging in this type of legal representation. Delegates from several regions throughout the country recently met in Chicago to develop a national approach to the education of both professionals and the public in this new approach to divorce. The president of A Better Divorce, an organization in the South Bay area committed to the advancement of the practice of collaborative family law, attended the conference as the representative of Southern California. Practitioners wanting to learn more can contact that organization or two others in Los Angeles County, Los Angeles Collaborative Family Law Association and the Coalition for Collaborative Divorce in the San Fernando Valley, which are also committed to the same purpose.
Collaborative family law professionals commit to a teamwork approach that excludes the courtroom. The parties can still feel secure that their individual interests are being represented legally, financially, and emotionally, while avoiding the damages that are typically wrought by the adversarial approach of litigation.