Collaborative law is totally outside the courtroom, except for agreed upon mandatory filings necessary for a dissolution filing. The basic elements of collaborative law are as follows:
- There is a written agreement (collaborative contract) signed by clients and lawyers whereby they agree none will make use of the court process during the collaborative process.
- Parties use good faith problem-solving skills to obtain an end result for the parties.
- Neither party may participate in any litigation against the other party/client after signing on as the collaborative attorney.
- Collaborative lawyers are essentially fired if one of the parties/clients chooses to litigate instead of using the collaborative process.
- Each party has their lawyer by their side and actively participates in all the collaborative meetings.
- Experts may be retained and when they are, they act as neutrals and they are also barred from participating in litigation.
While collaborative law may initially seem similar to mediation as it is both interest-based, it is not the same thing. Collaborative lawyers are advocates and not neutrals as in the mediation process. Collaborative attorneys learn constructive methods of assisting clients to advocate and prioritize the needs of the parties. It also differs as the risk of failure is equalized to the lawyers as well as the clients. If one of the clients chooses to litigate then the collaborative lawyers are no longer needed and, therefore, effectively “fired”. The is an added incentive to all the parties to become effective problem solvers.
The benefits of collaborative law are many and they include:
- Privacy and confidentiality
- The ability to be creative in the final settlement
- Ability to focus on children and “think outside the box”
- Keeps cases out of the courtroom
- Clients have control over the process
Why should you be interested in collaborative divorce?
There are many reasons one could be interested in a collaborative divorce. It may be because you are interested in retaining some control instead of giving that control to the Court system. It may be that you want to work in a process that allows for joint problem solving to maximize all potential benefits. It could be because you want to prepare and plan for a future for your children. It may be that you want to keep your financial matters private. It may be that you do not want a high conflict matter where you would prefer to be respectful and focus on the needs of both parties.
What is a collaborative like? What should I expect?
Initially, the parties and their respective collaborative counsel review and sign a written commitment whereby the parties will, through a series of planned team meetings, negotiate a settlement. The parties agree that should they resort to litigation they will no longer be able to have their respective counsel represent them. The parties agree to fully disclose all assets and debts and agree to actively problem solve using interest-based negotiation. There are four steps to the interest-based negotiation model. The first is a transparent and voluntary exchange of information. The second is identifying interests and values. The third step is to generate and create all available options by brainstorming. The final step is to mutually assess the available options and find which best fits. The goal is full resolution.
Ohio passed the Ohio Collaborative Family Law Act in December 2012. This Act recognized the collaborative process as an alternative for couples who no longer wish to be married. It defined the attributes of a collaborative process.
Private Judge Statute. I am a fan.
A recent Continuing Legal Education class taught me about the benefits of using a private judge. A private judge is a retired judge who has registered with the Ohio Supreme Court. The registration states that the judge is willing to serve as a judge according to an agreement entered into by the parties under R.C. 2701.10. The parties must file an agreement in their case in order to be heard by the private judge. The agreement must be signed by all interested parties and by the retired judge who will be hearing the matter.
R.C. 2701.10 allows parties to hire a retired judge to serve as the judge in their lawsuit. The judge must first register with the Ohio Supreme Court and give his or her intent to hear cases under the statute. Then, the judge registers with the Clerk in that county in which he or she wants to hear cases.
The advantage of having a private judge hear your matter is that the parties do no have to go to a court house, but can be heard in the offices of their lawyers.
Interestingly, seven states allow for private judges. Luckily, Ohio is one of them!
If you have any questions regarding domestic relations/ family law matters, please contact Anna M. Petronzio, firstname.lastname@example.org, 216-381-3400.