COLLABORATIVE DIVORCE

WHAT IS COLLABORATIVE DIVORCE?

Collaborative divorce is the newest method of alternative dispute resolution in family law. It can best be described as a method of practicing law in which the lawyers for both sides (parties) agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. All of the people involved commit themselves to achieving a negotiated outcome. It is agreed that no litigation will be commenced during the negotiations.

The parties and their lawyers enter into a “Participation Agreement” where it is agreed that if a settlement is not reached, the lawyers will withdraw from the process and not participate in the ensuing litigation. It is understood by all involved that the lawyers’ retainers are limited to settlement negotiations.

The “Participation Agreement” entered into by the parties, sets out the commitments in collaborative divorce. In most cases the Participation Agreement generally contains provisions such as:

  • it is agreed that the outstanding issues will be settled in a non-adversarial manner using interest-based negotiation;
  • the parties will rely on their lawyers to assist them in reaching the settlement;
  • the parties will act in their children’s best interests to promote the relationships between the children and the parties and to minimize any emotional damage to the children as a result of the separation;
  • all communications during the process will be constructive and fair, and will not take advantage of any errors made by the other party;
  • neutral experts may be retained;
  • the reasons and process for withdrawing from or ending the process;
  • the status quo will be maintained in regards to the children and no unilateral changes will be made to assets, insurance or other matters during the process without consent

The most important element of collaborative divorce is that the lawyers commit to manage the conflict, emotional issues and relationship issues creatively. The parties and their lawyers engage in four-way meetings. These meetings allow the parties to explore their issues using their own words and feelings.

MORE INFORMATION

Please visit the National Association Of Collaboritive Professionals on www.nacp.co.za