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Kofoed: Resolving disputes with collaborative family law

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Friday, April 13, 2018 7:02 PM
Curtis Kofoed

When a couple “lawyer up” during a divorce or custody dispute, it may seem that they’re about to go to war.

But you don’t have to re-enact Gettysburg to resolve a domestic dispute. A growing number of clients, attorneys and mental health professionals around the country, including a group here in Southwest Colorado, have been using a new approach to resolving family disputes: collaborative family law.

Resolving a case through family law court can be a long and complex process. After starting a case, parties sometimes endure months of waiting for their day in court, the outcome of which is uncertain. If parties cannot agree on how to solve a problem, they must ask the court to decide for them, which can cause more delay, stress and uncertainty. Moreover, if parties become stuck in an adversarial dynamic, conflict can escalate unnecessarily and children pay the price.

The collaborative approach to family law differs from this traditional approach. The collaborative process is one way to create a space for parties to cooperatively solve disputes.

Parties identify and work toward common goals, minimizing conflict while reaching creative and fair solutions together. The collaborative process is entirely voluntary, and it is not appropriate for every dispute.

When parties agree that a collaborative approach is appropriate, however, they enter into an agreement and set the rules for the collaborative process in their specific case. The goal is to shape the process according to the needs of the parties – the collaborative approach is not one size fits all.

Agreeing to try a collaborative approach doesn’t surrender the right to go to court if the collaborative approach fails, either. Resolving the case by going to court always remains an option.

A collaborative approach has several advantages. It gives parties the increased control over their case, it can save parties money and it can protect children by significantly reducing or even eliminating parental conflict and children’s exposure to it.

A fear of the unknown is common for people caught in legal battles, and family law disputes are no different. Questions about what a judge is likely to do, or about what the other party wants or is thinking keep people awake at night. Open communication between the parties is a key part of the collaborative process. Playing “hide the ball” is not the goal.

Issues involving children and finances tend to be the most complex and important. A collaborative approach gives the parties, who have the most skin in the game, more flexibility to focus on the issues that matter most to them, while carefully tailoring solutions to their individual needs and those of the family. Privacy is also preserved more effectively because disputes are handled in a controlled, confidential setting, instead of in open court.

Specialized professionals can also play a role in the collaborative process. Mental health professionals can help create parenting plans that suit both the needs of children and their parents. These professionals also facilitate communication between parties by helping each party work through emotions or thought processes that might otherwise prevent successful settlement.

Financial professionals can also be used to value assets and suggest strategies regarding property division and ways to address a family’s economic needs and abilities.

In the collaborative process, the parties, their attorneys and any involved professionals all work together. It therefore becomes possible to efficiently delegate responsibilities and move the case forward without duplicated efforts and duplicated costs. However, it is of course not guaranteed that a collaborative approach will save money.

Protecting children is perhaps the most valuable advantage of the collaborative law process. We have all heard about, or perhaps even experienced, nasty custody disputes. Psychological research increasingly shows that exposure to parental conflict can be extremely damaging to children. Because the collaborative approach is designed to avoid conflict, it can be an effective option for parents who want to protect their children from what can be a traumatic process.

The collaborative approach is not a miracle cure, but many are hopeful that, in appropriate cases, it can cure some of the problems associated with divorce and custody battles. If you have questions about collaborative law, please contact the San Juan Family Law Collaborative group.

Curtis Kofoed of Durango is a Colorado native and an attorney at the law firm of Anderson & Baker. Reach him at 259-1211.

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