The collaborative law process is a non-adversarial approach in comparison to litigation which is an adversarial approach. In litigation, parties will choose a particular position at the outset of a dispute. A party, with the assistance of a lawyer, creates this position by thinking only of his or her own interests, desires, and needs. Each party, with their conflicting positions and interests, will then go through an adversarial battle through numerous meetings and court hearings. Ultimately, a judge, jury, or arbitrator determines how the issue is resolved. Although the time and expense needed to resolve a family law issue depends on the situation, litigation is generally more expensive because of court fees, attorney fees, and the need to hire experts by both sides. Also, timing of litigation is generally controlled by a busy court’s docket.
In contrast, collaborative law employs a voluntary, structured, and cooperative process by which both parties and their lawyers agree to resolve an issue by negotiating a solution. As part of the process, the parties agree not to commence any court proceedings. The issues to be resolved and the general structure of the process are specified in a “Participation Agreement.” The parties and their lawyers agree to be bound by this agreement. Once a lawyer agrees to represent a party through the collaborative law process, the lawyer is disqualified from representing the party in any future court proceedings involving the same issues. The goal of the lawyer’s representation is to further his or her client’s interests as well as promote respectful and effective negotiation. Since the lawyer knows that his or her representation of the client can no longer involve litigation, the lawyer is prevented from using adversarial techniques to overcome the goals, interests, and concerns of the other party. Instead, both parties and their lawyers engage in negotiations in a friendlier and private environment to work through the personal differences in order to find a solution. Also, timing is controlled by the schedules of the parties and their attorneys, rather than the schedule of a court. The outcome of the collaborative law process is primarily controlled by the parties and their ability to negotiate, cooperate, and compromise.