Collaborative Process is a voluntary dispute resolution process through which parties settle their dispute without litigation. Family Court Rule 67.1 was formalized in 2016, yet many attorneys and litigants are unaware of Collaborative Process. Collaborative Process lives under a cloud of lack of awareness. With that lack of awareness, people continue to litigate. Yet so many of our clients express a wish for an out of court resolution that fits theirs specific circumstances. Many people we talk with express a wish that a judge does not make a decision about their lives. People overwhelmingly want to disclose the information that is important to their case. They want to use good faith efforts to negotiate. People want legal representation to ensure they are making the right legal decisions without waiving legal rights.
When people call and describe these desires, we respond to them, “You’re talking about Collaborative Process.” They say, “What is that?” Many of them have been to talk with other lawyers or have obtained legal advice, but somehow, they were never told about Collaborative Process. Even if you don’t use Collaborative Process, you deserve to know all of your options.
In Collaborative Process cases:
- The parties sign a collaborative participation agreement describing the nature and scope of the matter;
- The parties voluntarily disclose all information which is relevant and material to the matter that must be decided;
- The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement;
- Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding by either party;
- The parties may engage mental health and financial professionals whose engagement terminates upon the undertaking of any contested court proceeding; and
- The parties may jointly engage other experts as needed.
“Collaborative matter” means a case or issue within a case described within the scope of the collaborative law participation agreement and can include:
(a) marriage, dissolution, annulment, and property distribution;
(b) legal decision-making, parenting time, and visitation;
(c) spousal maintenance, and child support;
(e) parentage; and
(f) premarital, marital, and post-marital agreements.
Collaborative Process benefits most cases. In fact, in only a very, very few cases do people not reach a final agreement using collaborative law. Collaborative Process may not be right for a high conflict personality, particularly a person who does not acknowledge being high conflict.
Going to court is a stressful way to exercise your legal rights. The effects of stress are well-documented. Short-term stress can cause a number of physiological effects:
This automatic response developed in our ancient ancestors as a way to protect them from predators and other threats. Faced with danger, the body kicks into gear, flooding the body with hormones that elevate your heart rate, increase your blood pressure, boost your energy and prepare you to deal with the problem.
Even short-lived, minor stress can have an impact. You might get a stomach-ache before you have to give a presentation, for example. More major acute stress, whether caused by a fight with your spouse or an event like an earthquake or terrorist attack, can have an even bigger impact.
Multiple studies have shown that these sudden emotional stresses — especially anger — can trigger heart attacks, arrhythmias and even sudden death.1 Although this happens mostly in people who already have heart disease, some people don’t know they have a problem until acute stress causes a heart attack or something worse.
Imagine yourself, sitting in a courtroom at a specific time. You should be at work, but you had to leave to be at court in mid-afternoon. You are missing an important meeting and your job could be affected. Your parking meter is expired already, but the judge was running late for your 1:30 hearing. You walked a half mile to just get to the courthouse and up to the 6th floor. To even get into this building, you have to go through a metal detector and navigate your way to a windowless courtroom. You have limited time and next, someone else will be sitting in your seat. You are one of many, many people who the judge will make decisions about.
Sitting in court, you don’t know how long you will be gone from work, and you cannot take important phone calls. If your child called with a broken leg, you can’t take the call. You are not a lawyer, but you are trying to process complex legal information. You have limited choices to make, like whether you want to pick your son up at 4pm or 5pm, and where the custody exchange will be. Your choices have decreased, because you tendered to a judge the right to make decisions about your life. You are separated by walls from your judge who is physically elevated above you.
Imagine engaging in this very complex, stressful process – with that pounding heart, the upset stomach, the flooded hormones and raised blood pressure.
Now, imagine yourself in a professional office. You arrived at a time you and your lawyer selected, and the other side agreed. That was your first agreement – you could meet at 9am, since your meetings are all in the afternoon. You are a little nervous, but your lawyer offers you a croissant and some coffee or juice. Kleenex and water are readily available, and if you need to use the restroom or talk with your lawyer privately, you may do so. You read the collaborative commitment agreement. Everyone signs the collaborative law participation agreement and now, there are two agreements. The agreements are small, but they make you feel optimistic.
Your anxiety level is reduced, and just in time to talk about major legal rights. You are going to discuss community property (Arizona Revised Statute § 25-211 and § 25-213). You will talk about spousal maintenance (Arizona Revised Statute § 25-319). You will talk about attorneys fees (Arizona Revised Statute § 25-324). You will talk about child custody (Arizona Revised Statute § 25-403).
Collaborative Process also extends other benefits. If everyone knew about Collaborative Process and used it as designed, only the cases that really need a judge would be resolved in court. More litigants would be aware of their legal rights. Legal fees are reduced in most Collaborative Process cases. If more lawyers offered the lower cost, lower risk option of Collaborative Process, then more people may trust lawyers. Many cases currently in court are cases that could settle out of court if emotions were held in check. Much of the emotion around legal cases is based on a lack of information, or false information. Collaborative Process empowers the participants to hear legal advice in a way that makes sense and has real life application.