High-conflict family court cases can feel like runaway trains – difficult to stop once they gain momentum. Collaborative Practice offers a strategic method to divert these disputes from the courtroom toward resolution. But can collaborative practice truly redirect high-conflict cases effectively, and what must professionals consider today to successfully implement this approach?
Understanding Collaborative Practice Today
At the core of collaborative practice remains the agreement that lawyers and parties commit to resolving disputes outside of court. If collaborative practice breaks down, lawyers must withdraw, and parties retain new counsel for litigation, maintaining the integrity of the collaborative process.
Transitioning Newly Filed Cases into Collaborative Practice
Often, cases begin as court proceedings simply because families are not aware of collaborative practice. It is common to initially suggest collaborative practice in open, informative correspondence to the opposing party. When the other spouse initially self-represents or delays participation, the litigation process often moves forward, sometimes nearing conclusion before engagement occurs. However, if new counsel familiar with collaborative practice enters at this stage, an opportunity arises to pause the litigation.
Courts today are typically receptive to placing litigation on hold while parties explore collaborative practice, easing the burden on the overwhelmed courts. Any final collaborative practice agreement can subsequently be converted into a court order through straightforward administrative procedures, minimizing costs and delays.
Converting Existing Litigation to Collaborative Practice
Transitioning an active litigation file into collaborative practice presents distinct considerations:
- Inclusion of Neutrals: Utilizing family neutrals can vastly improve communication and address parenting issues efficiently. Financial neutrals streamline disclosure and clarify complex financial matters.
- Addressing Ongoing Litigation: Parties must strategically decide whether to withdraw the litigation entirely, temporarily halt proceedings, or adopt a hybrid collaborative practice model allowing limited court involvement for specific issues like valuations, disclosure disputes, or jurisdictional matters.
The Hybrid Collaborative Approach
Hybrid approaches, which permit limited judicial intervention to address narrowly defined disputes, have grown increasingly relevant, particularly post-pandemic. Virtual and hybrid sessions further facilitate flexibility, broadening collaborative practice accessibility. Explicitly modifying collaborative practice agreements to define clearly permissible judicial interactions and outline what information remains confidential ensures clarity and process integrity.
Updating Collaborative Practice Agreements for Modern Realities
Collaborative practice agreements should explicitly address:
- The scope of confidentiality and admissibility of disclosed information in future litigation
- Clearly defined notice provisions and waiting periods for returning to court
- Conditions under which limited judicial guidance may be sought without fully abandoning collaborative practice
Collaborative Practice: A Modern Solution for Complex Family Litigation
While collaborative practice purists might resist hybrid or modified collaborative processes, contemporary challenges – including court backlog, increased self-representation, and evolving family dynamics – demand creative, adaptable solutions. Collaborative practice, particularly when thoughtfully adapted, remains an essential tool to halt the runaway litigation train, providing families effective, timely and less adversarial resolutions.
This blog was updated from a previously posted FamilyLLB.com blog from 2019.