Collaborative vs. Court: How Collaborative Can be Better than Litigation

I believe that in most cases a resolution of family law issues should not be treated the same as a lawsuit. However, when most family law matters go to court, this is exactly how they are handled. When your issues are resolved in the courtroom, you and the other party are adversaries. After “argument” the court will make a decision that you and the other party must follow. What would this look like if the resolution of the dispute were obtained through the Collaborative Process? Consider an example of two parents with two small children. Both parents want significant time with their children but they have differences about what the children need and what a good schedule will be. If these parents go to court, they will necessarily have to present arguments to the Judge; this pits them against the other parent in order to persuade the court why the children should be with them more than with the other parent. This requires the parents to position themselves against the other. This frequently causes one or both parents to be negative about the other parent. Often litigation counsel will encourage their client to raise any possible negative history about the other parent, such as prior bad conduct, to persuade the judge. Parties become angry and hurt by the statements made by the other, and, in defending themselves, may seek to bring up “dirt” on the other party. Declarations (the parties' written statements) become clogged with accusations, misunderstandings, and sometimes blatant lies told in order to persuade a judge to agree with them. This kind of litigation can cause a dispute to escalate, cause new disputes, create very angry feelings, and flare hostility between parties, all of which will continue to affect them regardless of how the judge rules. The hurt and angry feelings will no doubt also affect the parties' ongoing ability to work together as parents.
In a Collaborative case, parties will work with attorneys and other professionals, who try to help the parties come to agreements without becoming adversarial. Parties will have assistance to find a way to bridge their differences and to come to a resolution. Old issues and prior conduct which have no direct effect on parenting will not be part of the discussion. Parties will be able to discuss their goals and differences with the other party in a safe and respectful environment. There is opportunity to discuss the “whys” and “hows” of what each parent wants. This is a significant change in how families can seek legal resolution, because they are not trying to persuade a single decision maker, but instead are trying to work together to come to a collaboratively crafted agreement which both parties can support. This difference alone can facilitate making the decisions necessary to resolve family law disputes. These disputes can be hard enough without fueling them with litigation tactics; so this alone presents one of the best benefits of the Collaborative Process.

Submitted by:
Laurel Tuvim Amaya
Family Law Collaborative Attorney and Mediator
www.Ltafamilylaw.com