|Susan E. McCabe, Attorney/Mediator
750 Kimball Road
Highland Park, IL 60035
Collaborative Practice Menu:
Collaborative Family Law Representation
“It is not the mountain we conquer but ourselves.”
Sir Edmund Hillary
|While Collaborative Family Law representation has been available in other areas since 1990, it is relatively new in Illinois, beginning in 2002. At present, it is practiced in more than 35 American states, and also in Canada, London, and Switzerland. It is a method to resolve disputes that allows the clients, their attorneys, and other professionals to operate in a context, which differs from the purely adversarial court method that has existed until now.
In a Collaborative case, both clients hire attorneys of their own choosing, who are trained in mediation skills and the Collaborative model. The attorneys are hired for the limited and sole purpose of negotiating a settlement. The attorneys and clients sign a Collaborative Law Participation Agreement in which the attorneys agree to serve as settlement counsel only and everyone agrees to abide by the Principles and Guidelines of the Collaborative model. http://www.collablawil.org/downloads/principles_guidelines.pdf
That is to say, the attorneys and clients agree up-front that the attorneys are contractually barred from ever going to court in the case outside of the Collaborative process. No one goes to court except by agreement, for administrative matters, or to finalize the divorce and agreements.
A Collaborative case promotes a more peaceful resolution by open and transparent communication, cooperative strategies, informal disclosure, and interest-based negotiations that occur at informal and private meetings. The case proceeds via a series of structured and confidential joint meetings attended by both clients, their attorneys, and other team members in the case. Other team members trained in the Collaborative Practice model, such as financial advisors, child specialists, collaborative coaches, or case managers are involved in a Collaborative case to address the cascade of financial, parenting, and emotional changes and decisions clients face when separating, divorcing, or post-decree. After all relevant information is disclosed to the satisfaction of both clients, discussions take place seeking agreements and decisions by the clients. The Collaborative team’s job is to facilitate the creation of a broader range of possible settlements for both clients than would normally be available in court, thus helping higher quality individualized solutions emerge in the collaborative case.
The team approach in a collaborative case, promotes clients’ progression through these life transitions in the most efficient manner by the clients’ receipt of factual, neutral, and timely advice from consultants. This is in sharp contrast to the dueling experts so often seen in the traditional, adversarial court-based system. Instead of experts to persuade and convince a judge to decide in favor of one's position, the experts in a collaborative case, provide advice to assist the clients to discuss and negotiate the many decisions surrounding the divorce/separation and to formulate long-term plans for themselves, their children, and their restructured family. The collaborative team provides the clients with tools for their decision making, for transitioning from a couple to separate personal lives, and for parents to lay the foundation for a co-parenting business-type relationship.
If their needs are not being met, clients are free to terminate the Collaborative process at any time and proceed to court. Practitioners may terminate the process as well, or if there is a matter that cannot be resolved within the collaborative forum, or an impasse is reached, the clients can work with a neutral mediator or some other alternative forum such as med-arb, or arbitrate the issue(s). If necessary, either client can choose to go to court. However, if a client wants to proceed to court, the case is no longer a Collaborative case and both attorneys, initially retained for the Collaborative case, must withdraw and new attorneys are retained to go into the traditional court system. It is this disqualification provision that keeps clients and the team of collaborative professionals “at the table” and focused on reaching agreements rather than spending time and money by positioning, or posturing to “see you in court”, and/or the other gamesmanship and strategizing that is often encountered with traditional court cases.
In the traditional court process, clients must adhere to court dates, court rules, and court schedules. Judges with busy caseloads, whom are often under-informed about the family situation, and whom each of the clients and their legal counsel are actively seeking to persuade at the expense of the other person, make rulings as necessary, and ultimately may impose decisions and solutions upon both clients. In contrast, the Collaborative process belongs to the clients, with the clients setting meeting dates that meet their needs and schedules and with the clients making their own decisions along the way. The Collaborative process provides clients the opportunity to have a primary role in the creation, design, and implementation of higher quality decisions and individualized solutions to their disputes and differences. Options for resolution are typically maximized and clients may also experience less expenditures in time, money, and/or negative emotional impacts. Once all decisions and agreements are reached in a Collaborative case, the legal documents are drafted and filed with the court, and clients typically attend one hearing before the Judge to file the required paperwork to finalize the divorce.
“Hatred is never ended by hatred, but by love.” Buddhist saying
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