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Collaborative Law

History and Facts about the Collaborative Law Process
This approach to divorce resolution was created in the 1990s by Stu Webb, a family law attorney based out of Minnesota. Webb felt that traditional litigation was more often than not extremely hurtful and less helpful for many families. Since its adoption, the collaborative law process has continued to increase in popularity and is spreading rapidly in nations outside the United States, including Canada, Europe and Australia.

Based on studies concerning the effectiveness of collaborative law, many lawyers and clients have stated that this approach can be less costly, more expedient, and less emotionally painful than traditional divorce proceedings. Collaborative law provides families with a less damaging and traumatic separation process: parents are in agreement, which can foster better adjustment and development for the children.

Collaborative divorce law is generally more cost effective than litigation, less time consuming, more client-friendly, places less stress on participants and their families, and generates much less anxiety and emotional distress than court proceedings and litigation. Collaborative law allows for the participants to control the proceedings, as opposed to the court or a judge. Collaborative law may not be the best option in certain situations. For example, domestic abuse, drug or alcohol addictions, an intention to hurt the other party emotionally, physically or financially, or serious mental illness are all situations wherein this approach to separation may not be the most appropriate.

Collaborative Law Process
Collaborative divorce law can be defined as a family law process wherein the two parties agree to avoid court proceedings and avoid any threats of litigation. The parties attempt to reach a fair settlement by way of a series of meetings, including each party and their lawyer.

Early participation by attorneys allows the participants and their attorneys to use the more positive and effective aspects of good lawyering not often seen in proceedings involving litigation, court intervention and even mediation, such as:

  • Critical and rational analysis,
  • Creative and thoughtful problem solving,
  • Generating multiple options for settlement,
  • Maintaining a positive and cooperative environment for settlement, and
  • Building a foundation for co-parenting, financial security and positive future interactions.

Responsibility of Participants
The participation agreement is the main document in collaborative law cases. This is a binding contract signed by all participants, which establishes the rules and regulations for the collaborative law process. The parties and lawyers agree to the following:

  1. The lawyers commit themselves to settling the case without any court intervention. If the collaborative law process is not successful, and litigation becomes necessary, the current lawyers must withdraw and the parties must retain new lawyers.
  2. Each participant shall uphold a high standard of integrity and specifically shall not take advantage of inconsistencies or miscalculations of others, but shall disclose them and seek to have them corrected.
  3. The participants agree to give full, complete, honest, and open disclosure of all information, whether requested or not, and to meet and participate fully in 4-way meetings for the purpose of reaching a settlement of all issues.
  4. The participants agree that the focus of the collaborative law process is to protect the privacy, respect and dignity of all involved, including participants, attorneys, and consultants. All statements and dialogues that have taken place during settlement meetings shall remain confidential.
  5. Each participants will remain courteous, diligent and will behave in good faith throughout the collaborative law process.

Collaborative law is a unified approach that aims to help couples make full-informed and thoroughly evaluated settlement decisions. If necessary and appropriate, outside experts can be consulted in an effort to reach conflict resolution. If participants agreeing to joint selection of a consultant or expert, the participants are not obligated to accept the report or opinion of that expert. Each participant may retain separate or additional experts to develop information relevant to reaching agreement. If a participant retains a separate expert, any such expert or consultant shall be directed to follow the spirit and direction of
the participation agreement. In some cases, divorce coaches are utilized in an effort to help each participant establish his/her goals, plan for the future and stay present and focused at all time throughout settlement negotiations.

Additional experts, such as mental health or financial experts can also be brought in if necessary. Financial experts aid in the divisions of assets and/or retirement funds, evaluate the worth of businesses, help educate the party who has not been involved with the finances, and promote the exploration of a variety of options aimed at ensuring financial stability and security for the parties. All experts brought into the case are employed in an effort to develop information used to promote an efficient, adequate and agreeable settlement.

If Settlement Cannot Be Reached Through Collaborative Law Process
If settlement cannot be reached through the collaborative-law process, the lawyers withdraw from the case and the participants may hire trial attorneys to address their issues during litigation. Any individual involved or faced with a divorce situation should consult a collaborative law attorney as soon as possible to get an assessment on his or her situation and to determine if settlement without litigation is possible.

Attorney Withdrawal
If either attorney deems it appropriate to withdraw from the case for any reason, including the need for court intervention or litigation, he or she agrees to do so immediately by (1) serving a written Notice of Withdrawal on his/her client, and the other participant and his/her attorney, and (2) filing the Notice of Withdrawal with the Court, in compliance with all existing procedures and rules of the court. This may be done without terminating the status of the case as a Collaborative Law case. Neither participants may take any legal action until fifteen (15) days after service ofthe Notice of Withdrawal, so that the participant whose attorney has withdrawn has an opportunity to retain a new attorney.

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