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Collaborative Family Law

Collaborative Family Law is an emerging area of practice in the Research Triangle area.  Martha New Milam is one of the lawyers from Durham, Wake and Orange Counties who have received training in the Collaborative Family Law process.  Please call Martha (profile) or e-mail her to learn more about Collaborative Family Law and to allow her to help you decide if participation in this process is appropriate for you. 

What is Collaborative Family Law (“CFL”)

Collaborative Family Law is a method of sorting through divorce and separation issues in which both parties to the dispute retain separate, specially trained lawyers, whose only job is to help them settle the dispute.  If the lawyers do not succeed in helping the clients resolve the problem, then the lawyers are out of a job and can never represent either client against the other again.  All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions to the legitimate needs of both parties.  No one may go to court, or even threaten to do so.  If that should occur, the Collaborative Family Law process terminates and both lawyers are disqualified from any further involvement in the case.  Lawyers hired for a Collaborative Family Law representation can never under any circumstances go to court for the clients who retained them

What is the difference between Collaborative Family Law and mediation?

Except for the fact there there is no neutral third-party, the collaborative process is part-way between mediation and an adversarial approach.  Collaborative divorce uses informal methods, such as voluntary production of financial documents, four-way conferences, negotiation and, where needed, outside professionals such as accountants, financial planners and family counselors.  While some lawyers may refer to themselves as being collaborative in style, true collaborative lawyering requires commitment, usually contractual or organizational, to the “no-court” aspect of the process.

The collaborative model provides an opportunity and an incentive for parties and lawyers to use their best efforts to reach agreement.  If this is not possible, then by the terms of a written agreement between the parties and their attorneys, the parties are free to seek new and separate litigation counsel.  Lawyers therefore have an incentive to facilitate agreement, rather than to foster conflict between the parties.  In the event that the collaborative process is unable to resolve all the issues in dispute between the parties, agreements reached during the collaboration can be preserved, and litigation can focus on the remaining issue or issues, limited and defined by the less expense collaborative process.

In mediation, there is one “neutral” who helps the disputing parties try to settle their case, and parties may participate in the process without independent legal counsel.  The mediator cannot give either party legal advice, and cannot help either side advocate its position.  If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, then the mediation can become unbalanced.  In that situation, if the mediator tries to deal with the problem, then the mediator is often seen by one side or the other as biased, whether or not that is true.  If the mediator does not find a way to deal with the problem, then the mediation can break down, or the agreement that results can be unfair.  If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Family Law was designed to deal more effectively with these problems, while maintaining the same absolute commitment to settlement as the sole agenda.  Each side has quality legal advice and advocacy built in at all times during the process.  Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates.  It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process remains positive and productive.