What is Collaborative Law?
Collaborative Law is a process by which parties work as a team with
their attorneys to resolve issues through principled negotiations. Each party receives legal advice at every step along the
way, and they collaborate to reach an agreement that works for each of them. When an agreement is reached, the paperwork is
drawn up and submitted to the Court for approval as an administrative dissolution, which means that neither party has to make
an appearance in Court.
Can one attorney represent both parties?
No. In Minnesota, the State Board of Professional Responsibility has
declared such a practice to be unethical, due to the conflict of interests that each party has. This is true even when parties
are in full agreement. Sometimes one party may elect to proceed without an attorney, in which case they sign a Waiver of Attorney
to show they have been advised of their right to have an attorney, and they are freely and voluntarily choosing to proceed
without an attorney. Even when they sign such a waiver, a party may still consult with an attorney if they choose; they simply
do not have an attorney signing the stipulation agreement on their behalf.
If we have a mediator, do we still need an attorney?
Yes. A mediator is a third-party neutral whose role
is simply to assist the parties in reaching agreement. A mediator can NOT give the parties legal advice, even if the mediator
is an attorney. The agreement that is reached with the mediator is an informal agreement that must be converted into the formal
legal documents. When parties reach agreement in the collaborative process, the agreement they sign is the actual agreement
that will be approved by the Court.
Will the collaborative process save us money?
While this is usually the case, it is not absolute.
In some highly conflicted matters, the parties may spend more time negotiating a settlement than they would by submitting
it directly to a Court for trial. However, since the collaborative process is less formal, the information gathering state
is less costly, and one neutral expert can assist the parties in resolving differences, rather than having two experts testifying
at trial. The trial process is usually very costly. This is because in order to get into court your attorney must obtain a
date for a hearing, then prepare, serve and file pleadings with the Court. It is time consuming to prepare the sworn statement
of a client, called an affidavit, which becomes the basis for the testimony that the Court will rely upon in making its decision
on the matter. Regardless of how dedicated a judge might be, he or she can never have the same appreciation for the circumstances
of the parties that the parties themselves have. It is not uncommon for each party to be unhappy with the decisions made by
the judge.
How can we keep from having a costly legal battle?
Parties must have enough emotional maturity to be able to put aside
emotional grievances in the interest of reaching an agreement settling their issues. When minor children are involved there
is good cause to do this; even when no children are involved, it is still the right thing to do.
Agreement may be reached in one of three basic ways: a) the parties may
work out their agreements with each other, b) the parties may use a mediator or c) the parties may use collaborative attorneys.
It is always advisable for parties to educate themselves regarding the
issues they will be confronting prior to entering any negotiations. Therefore, the best first step is to find and retain a
collaborative attorney to work with you through the process. The attorney can provide information about Minnesota laws that
affect your rights, duties and responsibilities. The attorney can also coach you in the process of working with your spouse.
When parties work out the terms of their agreements together or with the
help of a mediator, these informal agreements must be reduced to legal language as required by state laws. When parties reach
agreement thought the collaborative process, the agreement they sign is the actual agreement that is submitted to the Court
for approval and entry.
What if one party is not ready to agree to a divorce?
This is a very common reality. Most often, one party falls out of love
before the other party is aware it is even happening. That party has gone through the grieving process, and is at peace with
their decision. The other party is left to catch up, and it can be a very difficult undertaking. It is well worth the effort
for the party who is ready to proceed to delay doing so until their spouse can emotionally adjust to reality that the marriage
is ending. Counseling prior to starting a divorce can save considerable time and expense.
An old legal adage says, "Agree, for the law is costly!"
