Under our current legal system you have the choice to either resolve the issues between yourselves without Court intervention or follow the standard procedure of litigation and ultimately have the final determination made by a Judge in the black robe. The essence of collaborative law is the belief, shared by the two clients and their respective attorneys, that it is better for the clients and their families to resolve their matters amicably and without going to Court.
The primary difference between collaborative law and mediation is that in collaborative law each of the parties retains their own attorney and the parties and the attorneys meet to work through the various issues including residency of the children, support, distribution of property and all other issues which would otherwise have been involved in a litigated Court proceeding. This differs from mediation in that in the mediation process the two parties meet with a third party (mediator) who attempts to work with the parties to arrive at a solution. Unfortunately, in the mediated process, neither of the parties has an attorney with them during the process so there is a greater possibility that one party or the other will dominate or control that process. In collaborative law, that does not occur since each party has their own lawyer throughout the entire process
One of the most significant elements of the collaborative process, is that at the commencement of the process itself, an agreement is signed by all four parties; the two clients and the two attorneys, that should the collaborative process break down, neither attorney nor any experts retained during the process may be used in any litigation which is commenced by either party. This way, all four parties are committed to the process and to as amicable a resolution of the dispute as possible.
The collaborative process does not mean that litigation is not possible, however it means the parties realize that litigation can, and usually is, the least desirable and most expensive method to resolve disputes. However, it may be unavoidable in certain situations. Should that occur, litigation is still available to the parties, however, each must retain other counsel to pursue such litigation.
Collaborative law is not the best answer for everyone. However, considering that over 90% of all litigated matrimonial proceedings are ultimately settled before trial, it makes sense to enter the process of negotiated resolution first rather than wait for the bitterness, anger and cost of litigation to work its way through the legal system and then have a settlement, which is not generally to either party's liking, imposed by the Court in a strange and stressful environment.
As a member of the Association of Collaborative Family Law Attorneys, Inc., I highly recommend the collaborative process for those couples who believe resolving disputes of this nature with the goal of maximizing benefits and minimizing animosity is far better than having the resolution imposed upon them after financially and emotionally costly litigation.