Only a court can grant a divorce. A court can also decide issues of custody and parenting time, alimony and child support, the distribution of property, as well as other claims incident to the dissolution of a marriage. However, a court need not decide these issues as the parties themselves have the power to resolve them–and in the vast majority of cases, they do. Often the parties are able to settle their financial and custodial issues whether with or without the assistance of counsel, during the course of an ongoing litigation process. However, in recent years there has been a growing acceptance of dispute resolution methods, whether as an alternative to conventional litigation or as a compliment with respect thereto, to assist parties to resolve their marital issues. Indeed in 2006, Court Rule 5:4-2 was amended so as to require litigants to acknowledge their having been informed of the availability of these alternative and/or complimentary dispute resolution methods, including mediation and arbitration, when they file their initial pleadings. This reflected a commitment by this state’s Supreme Court encouraging use of these alternatives. Then in 2015 R.5:4-2(h) was amended once more to expressly include specific reference to the “collaborative law” process consistent with The New Jersey Family Collaborative Law Act (N.J.S.A 2A:23D-1 through 18) enacted in 2014 as an additional alternative method to conventional litigation.
While I have written blog posts addressing topics pertaining to mediation and arbitration, I admittedly had not given much thought to this process called “Collaborative Law” until it was a topic discussed at a recent seminar I attended. Although statutorily recognized and referenced in the court rules, family collaborative law by its nature can only occur outside of the litigation process. Hence, the family collaborative law process is distinct from other dispute resolution mechanisms because the parties must expressly agree and intend to resolve their disputes without litigation. Instead, each party, represented by his or her own collaborative law attorney, meet together with the other party to the dispute, that party’s collaborative law attorney, and as needed one or more non-party participants who are not attorneys but are professionals in their fields such as certified financial planners, certified public accountants, licensed clinical social workers, psychiatrists, psychologists, licensed professional counselors and marriage and family therapists. All participants must understand and agree that the process will terminate if either party commences a court proceeding related to the subject matter to be addressed through the family collaborative process other than to seek incorporation of a settlement agreement reached into a final judgment. Participation in the family collaborative law process can only be by way of an agreement voluntarily entered into, and communications made during the process are deemed confidential and privileged from disclosure.
Proponents of the family collaborative law process tout its emotional and financial benefits as opposed to traditional court litigation. They note that traditional litigation by its very nature lends itself to an adversarial approach in which parties generally devolve into warring camps where they fight out disputed issues either amongst each other or through the courts, fueling feelings of anger, hostility and mistrust. On the other hand, proponents claim that the collaborative law process is designed to foster communication, cooperation and trust with the goal of working towards a mutually created resolution of the parties’ marital issues. While each party’s lawyer provides them advice and advocates their positions, they do so collaboratively with the goal of reaching a settlement of the matter. “Divorce Coaches” maybe enlisted to assist the parties in dealing with the emotional issues inherent in these types of cases and to foster effective communication with each other. While asserting that traditional litigation is controlled by time frames and guidelines established by court rules or the judge, its proponents claim that in collaborative law it is the parties who control the process and time needed to come to a resolution. Proponents contend that traditional litigation involves a costly and time consuming discovery process for the exchange of information while in collaborative law the parties must commit themselves to transparency and cooperation in exchanging information deemed necessary by the participants to the process. Proponents also note that the confidentiality of the collaborative law process lends itself to facilitate a more free, frank and open line of communication which not only fosters settlement, but improves relationships going forward for the benefit of the entire family post-divorce.