The word Collaboration has always been with us. It is simply committing to listen to the other side, seeking to understand their perspective and working towards a solution that incorporates new information provided by both parties and experts. Collaborative Law is now a process of law in Washington and a number of other states where both parties and counsel contract to work issues out without Court intervention. Experts are brought in to help with economic and parenting issues and parties typically meet together in long negotiating sessions with their counsel. For some, Collaborative Law is a very good fit.
If both parties are straightforward and candid and are able to own their actions, then collaboration can be very productive. If your spouse is threatening, passive aggressive or manipulative with the truth then Collaborative Law may not be a good fit. We favor counsel who prefer reasonable negotiation over litigation. If both counsel know the likely outcome in Court it is possible to save fees by working out temporary issues instead of litigating them.
Collaborative law is governed by the UCLA (Uniform Collaborative Law Act, RCW 7.77). The core of collaborative law, like the core of mediation, is consensus. The parties must decide upon and agree to every issue with the help of their counsel and agreed experts. Both sides should have counsel in Collaborative law and counsel should be specifically trained in collaborative law in order to step back from the win-lose attitudes that are so deeply rooted in traditional litigation.
Collaborative law and mediation work best where parties are honest and negotiate in good faith. It allows the parties to design resolutions that truly work for them instead of having to work within a system imposed by a Court. Collaborative law and mediation thus are subject to manipulation by parties who pretend to wish to work things out but then refuse to agree to a final settlement unless they get their way. If this happens then there will be no agreement and your collaborative lawyer will have to withdraw and cannot represent you in litigation. This can double the cost of a divorce. Most parties can barely afford one set of attorneys, much less two so they are faced with accepting an unfair final demand or paying for new counsel to resolve the matter in court. This can create a good deal of anger and bitterness.
Some suggest that this makes collaborative law a defective process. This is untrue. It is a selective process. It is rather like a good antibiotic: it works well for some and poorly for others. Thus if you have any doubts about your spouse’s honesty and ability to negotiate in good faith then those doubts should be raised fully and clearly before you invest in mediation or collaboration. If you have doubts then you can test your partner’s sincerity by using the “worst issues first” approach. Normally mediation and collaboration face the easier issues first to get the ball rolling. However if you have concerns that your spouse may be a wolf in sheep’s clothing then ask that the most difficult issues be faced first and that they be reduced to writing. If this initial investment works, then collaboration or mediation of the remaining issues are likely to succeed.
While mediation and collaboration share many values and processes they are rarely mixed. Collaborative counsel rarely (some say never) use mediators because they are supposed to resolve the issues with their clients. Using a mediator is thus a failure of collaboration. In sum, collaboration can be like a wonder drug if it works for you. If you have doubts, then test it before making a major investment.