Collaborative law is a new option in Indiana divorce law practice, and is best thought of as another type of alternative dispute resolution (a.d.r.). It has more in common with mediation than traditional litigation.
What is Collaborative law?
The International Academy of Collaborative Professionals (“IACP”), describes collaborative law as follows:
The heart of Collaborative Practice or Collaborative Divorce (also called "no-court divorce," "divorce with dignity," "peaceful divorce") is to offer you and your spouse or partner the support, protection, and guidance of your own lawyers without going to court. Additionally, Collaborative Divorce allows you the benefit of child and financial specialists, divorce coaches and other professionals all working together on your team.
In collaborative practice, parties are contractual committed to:
o Negotiate a mutually acceptable settlement without having courts decide issues.
o Maintain open communication and information sharing.
o Create shared solutions acknowledging the highest priorities of all.
In practice, using collaborative law to resolve a divorce will involve a series of open, group meetings where the parties and their attorneys meet to discuss resolution. Agenda’s are developed for these meetings and parties and attorneys collaborate to resolve preliminary and final issues for the family. The first meetings might determine preliminary custody, parenting time and support issues, as well as who will occupy the marital residence and who will be responsible for which expenses. Further meetings would focus on how to bring the case to final resolution and develop a collaborative settlement agreement.
One of the benefits to collaborative law is that therapists (called "divorce coaches" in collaborative law), accountants, and other professionals can be used by the parties and brought to the meetings.
Like mediation, the collaborative process is confidential. However, unlike mediation, if the collaborative process fails and the parties ultimately decide to use go to court their collaborative attorneys must withdraw and they must hire new attorneys.
Moreover, during the process the parties and their attorneys are not allowed to threaten litigation or use litigation to resolve the divorce. This is major difference, and is the source of much criticism of collaborative law. But, it is the lack of litigation as a option that keeps collaborative law... well, collaborative, rather than positional. Think of two children fighting over the best toys. The fairest option would be for them to share the toys. But, at some point, one child will want to grab the toys and run to Mom and/or Dad for help, or, maybe decide they want to fight for the toys. Collaborative law attempts to take away these "nuclear options" and force the children to determine on their own that it is their best interest to thing to share the toys.