Collaborative Law refers to a method of resolving family law cases in a
way that prohibits court intervention. This family law movement started
about 10 years ago, and is relatively new to Seattle divorce attorneys,
Bellevue divorce attorneys, and Washington State family law attorneys
Collaborative Law can be used in a variety of Washington State family law
cases, including divorces, legal separations, child support modifications,
parenting plan modifications, paternity matters, and relocation cases.
In theory, the
Collaborative Law process sounds like the perfect choice. In reality, however, during divorce
proceedings (and other contested family law cases), the parties frequently
cannot work together effectively in what is often an emotionally charged
environment. They are often unable to agree on what constitutes a fair
and reasonable resolution of all issues. In some instances domestic violence,
a historical imbalance of power in the relationship, a lack of trust,
or the inability to constructively or respectfully communicate may make
Collaborative Law a poor choice.
The four key principals of Collaborative Law are:
- Both parties commit at the outset to resolve all issues by agreement without
court intervention, and without threatening court intervention.
- If either client seeks court intervention at any time, both attorneys must
withdraw from representation, and each party must hire a new attorney
to represent them.
- Both parties and the attorneys agree to participate in good faith negotiations,
disclosure of all information openly and freely, and interact in a respectful manner.
- All participants agree that all communications (oral or written) prepared
during the Collaborative Law process are inadmissible in any future court
proceeding without the express written consent of the participants.
We believe that whereas the Collaborative Law method can work in unique
circumstances, but it also presents many sand traps that an uninformed
client could easily fall into.
Moreover, we believe that the fundamental difference between Collaborative
Law, Cooperative Law, or traditional law practice is the following: if
negotiations don’t work – in Collaborative Law you must fire
your attorney, hire a new attorney who will go to court, and start your
case over from the very beginning. In Cooperative Law and traditional
law practice, your case continues with your attorney, the work done up
to the point of failed negotiations is preserved, and the court or arbitrator
decides unresolved issues. Here are a few more of our concerns:
In conclusion, McKinley Irvin offers Collaborative Law representation in
family law matters. We believe it can work for some. But, we also believe
that clients should approach this method with their eyes wide open, after
full and complete disclosure of the associated pros and cons, and with
the knowledge that there are other methods of dispute resolution which
have potentially less drastic consequences than Collaborative Law.
There are several options for alternative dispute resolution available
in traditional family law practice that, unlike with Collaborative Law,
do not require a client to,
- Prohibit their access to court if needed,
- Either accept a settlement they feel is unjust, or fire their attorney
and start their case over if they do pursue a decision from the court, or
- Divulge information to the other side that would normally be considered
protected and confidential under attorney/client privilege rules.
- Refrain from formal discovery that could put clients at risk of financial loss.
Typical and often required forms of alternative dispute resolution in traditional
family law practice include,
- Arbitration, and
- Settlement Conferences.
These procedures – which are typically present in traditional family
law practice – result in settling the case and avoiding trial in
approximately 90% of cases.
- After many years of representing hundreds of parents in divorce proceedings,
we find that although emotions are high while the case is pending, once
the case ends and as time passes, parents who are mostly concerned with
their children’s needs learn to develop a mutually cooperative and
respectful co-parenting relationship with their ex-spouse.
- Court appearances can be stressful for everyone and even the attorneys.
For some attorneys, family law practice may be less stressful when the
attorney knows he or she will not have to go to court in a case. A client
may feel the same way. However, we believe that a family law attorney
should be able and willing to represent their client at any stage of the
case, and a family law client should have access to the courts in the
event a settlement cannot be reached.
- Getting divorced can take many months regardless of the method used to
resolve the case. After months of developing a relationship with an attorney,
fact finding, negotiations, and considerable emotional and financial cost,
it seems akin to undue pressure when a client is faced with either accepting
a settlement they believe is unjust, or firing their attorney and starting
- In many Collaborative Law cases, a team of professionals is assembled to
assist the parties in settlement. These professionals could include property
valuators, parenting evaluators, counselors to mediate negotiating behavior,
and so on. The process can be expensive. Not unlike traditional family
The very nature of the Collaborative Law method prevents the use of certain
litigation styles and strategies. It is critical that a client understand
what he or she is giving up by pursuing the Collaborative Law method,
and what the long and short-term consequences could be as a result.