The collaborative commitment is a contractual agreement to NOT litigate your matter. As a result, helping you and your spouse reach resolution becomes the collaborative divorce attorney’s sole objective. There professional relationship is called a limited representation and is the very essence of the collaborative divorce process. It is the glue that holds the process together. It puts the attorney’s skin in the game to get the matter resolved. More importantly, it allows the attorneys to set aside their ethical obligations to prepare for trial and implement strategy to obtain advantages in litigation. With both attorneys able to set aside litigation preparation and strategy, the participants are safe within the collaborative process to transparently disclose all information and interests in their efforts to come to a resolution.
This shift to limited representation for the sole purpose of resolution has subtle but practical effects upon the attorney’s representation. In traditional representation, the attorney is an advocate who speaks for you and who has an obligation to prepare to litigate your matter, even if also simultaneously engaged in settlement discussions. In collaborative divorce, your attorney works to create and maintain a safe forum, prepares you for the process, and then supports you as an ally in the process to use your own voice.
Just as in traditional representation, your attorney gives you information about your legal rights and obligations, and imparts his/her experience and opinions about what may happen if the case was decided by a court. The difference, however, is that in the collaborative divorce process these shadow-of-the-law discussions are done together with both clients and both attorneys. There are no secret agendas. By the nature of this type of presentation, each side knows the strengths and weaknesses of the other’s legal positions. Also, in addition to giving shadow-of-the-law information and advice, the attorneys in a collaborative process will facilitate discussions that identify and consider the specific interests and priorities of the parties, some of which may be counter to what the law prescribes, but may nonetheless facilitate the parties’ own unique resolution.
In traditional processes, attorneys tend to run the whole show. They do everything from negotiating your parenting time schedule to estimating the income tax ramifications of proposed support packages. This has become so commonplace that the senselessness of it has been lost. In collaborative divorce processes, relegating tasks and deferring to experts within their expertise is an accepted and even encouraged standard of practice. Collaborative teams are assembled as needed with coaches, child specialists and neutral financial professionals. All the professionals on the team are fully trained in the collaborative process. Why pay attorneys to help you make decisions about your children if you can get advice and assistance from someone with a Ph.D. in child development? Why pay attorneys to separately develop budgets and evaluate financial implications of property division and payment of support, when one neutral credentialed financial professional can gather information from both parties and impart an analysis to the participants together as a group? The attorneys coordinate the show so as to be as efficient as possible, but can step back and let others with expertise take center stage, all for the benefit of the clients.
