This article written by Evolution Divorce founder Chris Macturk originally appeared in the June 2021 edition of River Road Living.
When you hear the word “divorce,” what comes to mind? Probably a courtroom scene. Maybe even the courtroom scene from “Liar, Liar,” which I watched on YouTube recently. I noticed the person who posted it wrote, “Breaks my heart that this kind of nonsense still happens.” I agree.
But while divorcing couples still “fight it out” in court, I wonder how many still would if they knew they had other options.
In fact, if you are going through a divorce right now, your lawyer should have advised you about other ways to handle your divorce case outside of court.
Comment  to Rule 1.2 the Rules of Professional Conduct for Virginia attorneys says “a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing” the client’s objectives.
Going to court is the most known “dispute resolution process” for divorcing couples, but others do exist, one of which you may have already heard about.
Alternatives to Court
Mediation is a commonly known dispute resolution process. More specifically, mediation is a form of “alternate dispute resolution” which means it is an “alternative” to going to court. In mediation, a third-party neutral called a “mediator” helps the divorcing couple reach agreements.
But while the mediator may be a lawyer, the mediator is not your lawyer. And one lawyer cannot represent both parties to a divorce.
What is Collaborative Law?
Collaborative Law is another voluntary alternative dispute resolution process which involves two lawyers, each representing their own client, is confidential like mediation, but can also add other professionals to the mix to best support and guide couples and their families going through divorce.
In Collaborative cases, spouses sign a Collaborative Participation Agreement which establishes rules for their negotiations.
One of the most significant rules, which distinguishes Collaborative Law from other forms of dispute resolution, is if the process terminates for any reason and the couple ends up in court, they need to find new lawyers. This is called “attorney disqualification.”
The Collaborative lawyers are only hired for the Collaborative Law process. There are clear benefits to this rule. Without it, lawyers are distracted by the possibility of future litigation and litigation tactics. Lawyers in the Collaborative Law process, however, are freed from that distraction. Their entire focus is on settlement negotiations. Clients are also incentivized to keep working on reaching an agreement when the conversations get difficult and not walk away from the settlement table too quickly just to start over again with new lawyers.
Another important rule in Collaborative Law is full disclosure. Collaborative Law is not only a voluntary, confidential process, but also a transparent process. This builds trust on which agreements can be reached. In my experience, full disclosure greatly increases the chances of parties reaching an agreement they each think is fair and reasonable.
The “team approach” is often part of Collaborative Law. In the Richmond area, for example, we have a local practice group called Collaborative Professionals of Richmond (www.collaborativeprofessionalsofrichmond.com) made up of independent professionals of attorneys, financial consultants, and mental health providers. Together, they work as a Collaborative “team” to help divorcing couples and their children through the process of separation and divorce. The “team” is another distinguishing aspect which makes Collaborative Law different than other forms of dispute resolution.
The Uniform Collaborative Law Act (UCLA)
The Uniform Collaborative Law Act (UCLA) was adopted by the Virginia General Assembly this year and will become effective July 1, 2021. Virginia became the 20th jurisdiction in the country to adopt the UCLA which provides statutory regulation and protections to the Collaborative Law process. Before, the process was only regulated by private contract. Mediation has had similar protections and regulations in Virginia statutes for some time now. Clearly, the legislature saw fit to adopt similar protections and regulations for Collaborative Law.
To learn more about whether Collaborative Law would be a good “dispute resolution process” for your matter, please contact us at 804-793-8200.