Collaborative law is a process for voluntary dispute resolution in which the parties – the husband and wife – each retain their own attorneys to help resolve their divorce amicably without court intervention. The two attorneys and the parties sign an agreement that they will not litigate while working within the collaborative process. In the unlikely event that the lawyers don’t succeed in helping the parties resolve their dispute, both lawyers must withdraw and the parties must retain litigation counsel.
It differs from mediation in that sometimes mediating parties have no counsel and they meet with a mediator by themselves. In collaboration, you’re always with your attorney when you’re having a conversation about settlement with the other side.
In mediation, there is sometimes a power imbalance where the parties are not equal. For instance, one is captain of industry and the other is a stay-at-home caretaker for the children. The parties may feel uncomfortable sitting in a room with a mediator and their spouse, but in the collaborative process they would have a lawyer present as well. Of course, you can still hire your own consulting attorney in mediation, but some would say that defeats the purpose of saving money because then each party has their own attorney as well as a mediator. However, both mediation and collaboration are alternative dispute resolution processes and are preferable to litigation.
Founding partner of McGaughey & Spirito in Redondo Beach, California, Joe Spirito has been practicing family law since 1982 and is currently serving as secretary of the Los Angeles County Bar’s Family Law Section.