faqs about collaborative law and mediation

8/13/2019 FAQs about Collaborative Law and Mediation

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FREOUENTLY ASKED OUESTIONS ABOUT COLLABORATIVE LAWWhat is collaborative law?

Collaborative aw is a process esignedo resolveconflictsusing nterest-basednegotiations. Both partiesare represented y attorneyswho have been rained in thecollaborativeprocess. The only goal for both the partiesand the attorneys s to reachanagreement hat satisfiesboth parties' needsand nterests. In collaborative aw, the partiesandtheir attorneysagree o resolve he conflict without going to court, which keeps he parties ncomplete control of their own end result.How is collaborative law different from litigation?

One of the basic deasbehind the collaborativeprocess s to keep he parties n controland everybody involved agrees o resolve he conflict without going to court. Litigation is basedon preparingfor court, presentingevidence o the court, arguing each side of the case o thecourt, having the court decide he caseand then deciding whether o appeal he court's decisionto a higher court. In litigation, the partieshand control of the caseover to their attorneysand thecourt system.How is collaborative law different from mediation?

Collaborative law involves a seriesof four-party conferenceswith both partiesand theirattorneys o discuss he issuesspecified as mportantby theparties. The attorneyshelp to guidethe discussion,model and teach communication echniquesandgive legal advice to their clients.In mediation, the individuals meet with a neutral third person the mediator) who hasspecializedtraining in conflict resolution, who facilitates a discussionbetween he partieswith the goal ofhaving them resolve their conflict. Although the mediator may be an attorney, he or she doesnotrepresenteitherparty and doesnot give legal advice. Thepartiesare usually represented yattorneys outside he mediationprocesswho give them legal advice. The parties' attorneysareusually not involved n the actualmediationsessions.What are the benefitsof the collaborativeprocess?

The collaborativeprocessallows the individuals to control their own destiny and allowsthem to retain the decision-making authority regarding heir lives insteadof putting decisions nthe hands of the court. It helps ndividuals communicatewith each other andfocuseson bothparties' needsand interests nsteadof making the partiesadversariesn a court battle. Thepartiesand their attorneyswork together(collaborate) o addresshe issues hat are mportant totheparties n resolving heir divorce,property ssues, inancialneedsandparentingconcerns.Am I required to be represented y an attorney o participate n collaborative aw?

Yes, you need o be represented y an attorneywith specific training in collaborative law.The communicationskills, problemsolvingstrategies nd conflict resolution echniquesmodeledand taught by the attorneys n collaborative aw are a result of specific training and are extremely


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valuableto making the collaborativeprocesssuccessful.Very few individuals are able to use hecommunication skills that are so uitical to the collaborativeprocesswithout specific training andare not prepared o adequatelyparticipate n the collaborativeprocesswithout being representedby * attorney.Can I chooseany attorney I would like to representme in collaborative aw?

The attorneys nvolved in the collaborativeprocesshave extensive raining in thecollaborative law process. Many of the collaborative aw attorneyshaveadditional training asmediators. To participate n the collaborative aw processyou must be represented y anattorney who hascollaborative aw training. Information about attorneyswho are rained incollaborative aw in the centralPennsylvania rea s availableat www.collaborativelLwpa.corn,which is the website for the IndependentCollaborative Attorneys of Central Pennsylvania.What issuescan we address hroueh collaborative aw?

You can addressany and ul, ,rr,r , that are of concern o you in collaborative aw. Ingeneral, ndividuals generallyaddress ow they will accomplish heir divorce or separation,division of property, implementationof the termsof prenuptialagreements, inancial and ncomeissuesand co-parentingafter a separationor divorce. Anything that is of concern o you can beaddressedn collaborative law. Since he individuals who are nvolved in the processdeterminewhat they will address, ou remain n completecontrol of the subjectmatter for the four-partyconferences.Do attorneys harge ess or collaborative aw cases?

Most attorneyschargean hourly rateandrequirea retainerwhen they begin theirrepresentation.They generallycharge heir usual hourly rate for collaborative aw cases,but theoverall cost of resolving a collaborative case rom beginning o end s frequently much less hanthe cost of litigating a case. The attorneysuse heir time andyour money working together withthe partiesto reach a successful esolution nsteadof constantly ighting little battles between heparties hat don't really advance he situation oward resolution.What if the otherpersondoesn'twant to participate n a collaborative aw approach?

It takes wo to tango. Both partiesand their attorneysmust be committed to resolvingtheir conflict through the collaborativeprocess. If one of the parties s reluctant to engage n thecollaborativeapproach,both partieswill need o find a different way to address heir conflict.What happens f we don't reach an agreement?

If you don't reachan agreement hrough the collaborativeprocess,you can continueworking toward an agreement hroughdirect negotiation or mediation or decide o litigatethrough the court system. If you do not reachan agreementand eave he collaborativeprocess,both partiesmust retain new attomeys. Attorneys in the collaborativeprocessare bound by their


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agreementnot to represent he parties n litigation if there s no agreement eached ncollaboration.How long does he collaborative aw processake?

The collaborativeprocess s generally aster han litigation, since he courtprocesscantake years. The collaborative four-party conferences re scheduledby agreementof the partiesand their attorneys,usually about hree weeksapart. Thereare ypically at least fourconferences,although the numberof conferences ependson the number of issues he partiesneed o addressand the paceat which they areprepared o dealwith them.Is the collaborative aw processessexpensive han othermethods?

The biggest factor in determininghow much a divorce costs s the amountof time theattorneysspendworking on the case. The court filing feesand other fixed costs are he sameregardless f how the divorce s handled. Since he collaborative rocesss generally aster hanlitigation and often requires he attorneys o spend ess ime, it is usually less expensive hanlitigation. Of course, f the partiesareable to sit down privately and reach an overall agreementthat they then submit to their attorneys o have he required egal documentsprepared, hatprocesswould most ikely be essexpensive han he collaborativeaw process.What happens f we needother individuals involved in the collaborative aw process?

Individuals sometimesneed expert assistancen accounting, inancial planning, parentingor another area during the collaborative aw process. In that case, he partiesmust decidewhether to seek he advice of an expert, who to contact, he extent of their involvement and howthe expert will be compensated.The attorneyscan usually make recommendations egardingexperts with whom they haveworked in the past. The expertscanhaveasmuch or as ittleinvolvement in the collaborative aw processas he partiesdecide.Can't we just sit down and reachan agreementwithout having attorneys nvolved?

Some ndividuals are able to sit down together,have a reasonable iscussionandresolvetheir differenceswithout the assistance f attorneys,but that is the exception nsteadof the rule.If that works, thepartiesshould still retain attorneysn a limited capacity o prepare he legaldocumentsand review the terms of the agreement o makesure he partiesunderstand heconsequences f their agreement.Most individuals need some assistanceo communicateeffectively and reach a fair resolution, which is the role of their collaborative attorney.FREOUENTLYASKEDOUESTIONSABOUT MEDIATION

What s mediation?Mediation is negotiating he resolution of a conflict with the assistance f a neutral thirdparty (the mediator) who facilitates the negotiationprocess.Mediation is conducted hrough a


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seriesof informal meeting between he partiesand the mediator o address he issues he partiesagreeare mportant to them.How is mediationdifferent from litigation?

Litigation is basedon the partiesacting as adversaries, ighting againsteach other toconvince the court to accept heir individual position regarding he conflict as he correctoutcome. Mediation involves the partiesnegotiating heir own agreementand ointly resolvingtheir conflict with the help of the mediator. In mediation, he partiesmaintain control of theoutcomeand nobodyelsecan orce hem o accepta decisionagainst heir will.How is mediationdifferent from collaborative aw?

Mediation and collaborative aw both involve a seriesof meetingswith the goal ofresolving the conflict between he parties. In collaborative aw, the partiesand their attorneysare nvolved in the four-party conferenceswith the attorneys epresenting heir clients andfacilitating the negotiationsbetween he parties. In mediation, he parties generallymeet withonly the mediator presentand the attorneysare avaiiable outside he mediation sessions o offerthe parties egal advice and to finalize the parties'written agreement.What are he benefits of mediation?

Mediation can be essstressful,ess ime-consuming nd esscostly han itigation.Mediation can also have lasting effects on how the partiescommunicateand interactwith eachother after the mediation processends,which is particularly importantwhen the partieshavechildren togetherand will need o continue o interactas hey co-parent heir children. Mediationallows the parties o maintain control of their own decision-making nsteadof putting their livesin the hands of the court. Individuals are much more likely to be satisfiedwith the outcome ofmediationas opposed o litigation.Am I required to be represented y an attorney o participate n mediation?

No, you are not required to be represented y attorney o participate n mediation.However, you shouldhavean attorney o give you legal advice and to make sure he resultingagreement s legal and enforceable. The mediator s a neutralperson,so he or she does notrepresenteitherparty and will not give advice o eitherparty.Can I chooseany attorneyI would like to representme in mediation?

Your choiceof attorney s your decision n mediation.What issuescan we address hroush mediation?

In mediation,you can address ny ssue hat bothpartiesagreeneeds o be resolved.Frequent ssuesaddressedn mediation are divorce or separation,dividing property, financial


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support and child custodyand co-parentingdecisions. Individuals and businesses an also usemediation to resolveconflicts outside he familv law arena.Do attomeyscharge ess or mediationcases?

It dependson the attorney. Most attorneyscharge heir usual hourly rate for workperformed, egardless f which processhe partieschoose.However, he mediationprocess ansubstantially reduce he numberof hoursattorneysneed o spendworking on individual cases,which means hat mediation canreduce he overall cost of attorneys' fees. In mediation, thepartiesusually spendmore time meeting togetherwith the mediator han they do meeting with orspeakingwith their attorneys.What if the other persondoesn't want to participate n mediation?

Mediation requires voluntary participationby both individuals. If oneparty refuses oparticipate n mediation, it is not an option. Thereare certainprovisionsin the law that requireparties o attend at leastonemediationsessionprior to having a court hearing, but thoseinstancesare the exception andnot the rule.What happens f we don't reachan agreement?

Although the majority of peoplewho participate n mediation reachmutually acceptableagreements,here are imes when he conflict s not resolved. n thosecases,he partiesmustchooseanotherprocess o addresshe ssues.They could ry direct negotiationbetween he twoof them, collaborative law or litigation. Even if the partiesdon't reach an overall agreement nmediation, they may reachagreementon some ssuesandmay alsonarrow the scopeof theirconflict to make it easier o resolve hrough anothermethod. They may also leam somenewcommunication echniques ven f they don't reachan overall esolutionof their conflicts.Doesmediation take lonser than othermethods?

Mediation s usuallya time-efficientmethodof resolvingconflict. It generally akesmuch longer to litigate a dispute hrough the court system han to resolve t throughmediation.Sitting down together without the formality of mediation sessions an be quicker than mediation,but few people are able to effectively resolve heir issues n that way. The mediation processusually involves several sessionswith a few weeks betweeneach session,which allows theparties o take whatever actions are necessary etweensessions o be ready for the next session.What happens f we need other individuals involved in the mediation?

Partiessometimes eed he assistancef professionals uring he mediationprocess.They may include financial experts,mentalhealth expertsor co-parentingexperts,ust to name afew. The partiesdecide ointly aspart of the mediationprocesswhether they need experts orother individuals involved, the extent of their involvement, how they will be compensated nd allotherspecifics.


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Can't we just sit down andreachan agreementwithout having attorneys nvolved?Some ndividuals are able to sit down togetherand resolve heir conflict privately withoutthe formality of the mediation processand without the assistance f a neutral third person.However, the majority of peoplebenefit from the assistance f a mediator by learning moreeffective communication techniques. Even if partieswork out the terms of their own agreementwithout meeting with a mediator, they shouldhaveattorneysprepare he written agreementlanguageand both partiesshouldhaveadvicefrom separate ttorneys egarding he terms of theagreement.

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