Collaborative Law

90-95% percent of all family law cases eventually settle before trial. Many reach settlement only after years of financially and emotionally draining adversarial negotiation and trial preparation.

Collaborative Law — the practice of settling cases without court intervention — provides an alternative.

By encouraging mature, cooperative, and non-combative behavior and agreeing to avoid litigation, an environment is created where both parties and counsel are committed to reaching an efficient, mutually agreeable settlement — out of court. In my humble opinion, this is the way it should be. We don’t raise children in courtrooms and the litigation process is anything but “child friendly.”

Collaborative lawyers are often very experienced and seasoned attorneys who have handled protracted litigation cases for several years and who have decided to offer a better way for clients to resolve their family law disputes. This, however, is not always the case and many collaborative law attorneys have not been litigation attorneys. When practiced correctly, it won’t matter.

To see if the collaborative law approach is right for you, visit www.collaborativepractice.com.

Protect Privacy and Dignity

Lawyers who practice collaborative law protect the privacy and dignity of all involved in the process. They uphold standards of integrity and, if inconsistencies and miscalculations occur, seek to correct them.

Collaborative law practitioners expend as much effort working toward settlement of your case as they would to prepare for and conduct a trial. As needed, they provide complete, honest, and open disclosure of all relevant information. Usually, however, they do this without formal proceedings. If an impasse arises, they may suggest that you bring in a neutral third party as a mediator.

Both Lawyers Are Prohibited From Taking the Case to Court

As in traditional divorce cases, your lawyer supports you and your spouse’s lawyer supports your spouse. But in collaborative family law, both lawyers must also practice collaborative law, or it cannot procced. Before the process begins, all of you — lawyers and clients– formally contract to work together to resolve your divorce issues. Both lawyers are then, by agreement, prohibited from taking the case to court. In other words, all efforts are aimed at settlement and because of the full disclosure and mediation like methods utilized, if the parties later chose to “fight it out” in court, they will need to retain a new set of attorneys for litigation purposes. This provides incredible incentive to stay committed to reaching agreements and settling important issues. Many people thing this is a drawback, when in fact it is the linchpin that makes the collaborative process so successful.

Meetings Promote Communication and Cooperation

To reach a settlement using collaborative law, the lawyers initiate four-way meetings between themselves and their clients. The meetings promote improved communications and cooperation and fosters an environment that leads to indepth analysis and reasoning. This helps generate options and creates a positive context for settlement while giving both parties control over the outcome. The commitment to continued cooperation – even if communication becomes difficult — also increases the likelihood of a solution where everybody wins.

Focus on Mutually Agreed Upon Settlement

Collaborative family law focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits.

It creates a cooperative environment where communication remains open, which provides a setting where you can work with your spouse to meet your children’s needs — regardless of their ages. That helps set a tone for open communication and reduced conflict in the future.

It establishes a team instead of adversaries. Your lawyer supports you; your spouse’s lawyer supports your spouse. But you all work together and in doing so, retain control of the process.

In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

You and your spouse shape the agreement together — which means you both are more likely to keep them. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result.

You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

Your issues stay within the collaborative law setting. That gives more privacy and greater confidentially — and less stress during an already stressful time.

There are many similarities between mediation and collaborative law. The short version is that a mediator, who may or may not be an attorney, acts as a neutral third party in assisting the parties in guided discussions without taking sides or advocating for either party. The mediator will help facilitate in the parties coming up with options and possible solutions to the issues presented. The mediator will not give you legal advice and will generally provide a memorandum of understanding (a tentative agreement of sorts) and suggest that each party have it reviewed by his or her own attorney before signing off on a final agreement.

In a collaborative law approach each participant has his or her own specially trained collaborative attorney at his or her side throughout the process. The goal is to reach a detailed and comprehensive signed and binding agreement. The parties and their attorneys sign a participation agreement at the outset, which is the cornerstone of the collaborative process. The parties pledge not to take the case to court for any contested issues and all work together to find “acceptable solutions” for all concerned. While your lawyer is there to advocate on your behalf, it is much different than the traditional, “scorched earth – winner take all” litigation approach that often wreaks havoc on families for years and years. Almost all settlement discussions take place in an open format with the parties and counsel present.

In the collaborative team approach the parties with the assistance of their attorneys will jointly select other collaboratively trained professionals like financial specialists, child specialists, divorce coaches, parent coordinators, accountants, appraisers and the like. Even a full team approach is often far less expensive than resolving a case through contested litigation. Most importantly, you own the outcome and retain the control over what happens to you and your family and that is truly priceless!

For all you need to know about the Collaborative Process, visit the International Academy of Collaborative Professionals at www.collaborativepractice.com.

Excerpt from:

Stop Fighting over the Kids: Resolving Day-to-Day Custody Conflict in Divorce Situations By: Mike Mastracci

(You can purchase the book off Amazon or download your free PDF version from this web site)

A Kinder, Gentler Approach to Divorce:
An Introduction to the Collaborative Divorce Method

In recent years, a new breed of family law attorneys has evolved; perhaps for you, it’s happened just in time! About half of all marriages in the United States end in divorce. The sad reality is that divorce involves far too many complex personal and family issues to be adequately addressed and appropriately resolved by an already overwhelmed judiciary. People need to learn to help themselves. Fortunately, the collaborative law method provides the tools, resources, and professional assistance in a specialized and structured framework to achieve effective outcomes for families in transition. Furthermore, it is no secret that even under the best of circumstances divorce and child custody and visitation issues often result in emotional upheavals. Divorce professionals and researchers alike have concluded that how a couple conducts themselves during a divorce has far greater impact on their children than the separation itself.

The collaborative process provides the following benefits:

• Keeps your children out of conflict and minimizes the overall controversy
• Provides you with greater control over the outcome of your divorce
• Is generally less expensive and quicker than litigation
• Helps maintain a sense of integrity and respect between the parties
• Is a private and confidential process
• Increases interpersonal communication skills
• Promotes open and honest communication
• Significantly reduces stress and uncertainty
• Provides effective solutions to one of life’s most difficult challenges
• Provides a positive parenting framework for the future
• Increases the likelihood of raising happier and emotionally healthier children

The collaborative law model is a commitment to a principled, negotiated settlement, focusing on client empowerment. It follows established protocols, without the threat or use of court action. It includes a commitment to recognize that divorce is multi-dimensional, and it presents opportunities to provide resources for couples and families to assist with the parental, communication, and financial issues that often arise. Collaborative professionals enter into negotiations with the intention of creating an agreement that will allow both parties to achieve their essential goals.

The Collaborative Way to Divorce by Stuart G. Webb, the founder of the Collaborative Law movement, and Ronald D. Ousky, an early pioneer of the process, describes the origin and development of the collaborative law movement and guides you through the steps of the collaborative process so that you can make better, more informed, and more strategic decisions – resulting in a win-win outcome for you and your family. Stressing cooperation over confrontation and resolution over revenge, collaborative divorce is quickly transforming how couples dissolve their marriages, divide their assets, and reinvent their post-divorce parenting relationships.

Collaborative law practices take place outside of the court process. It is a transparent, good faith, open, and honest process. In addition, the parties, who must choose to go through the process, commit to avoid litigation and utilize specially trained attorneys and/or a team approach to resolving conflict in an atmosphere of honesty, cooperation, integrity, and professionalism. All disclosure is voluntary, full, and honest, and all experts or non-legal professionals work as consultants for the entire group.

Given the voluntary nature of participation in this process, coupled with specialized training of the attorneys, the parties themselves are able to completely control the process, the outcome, and their futures. Nothing is left to chance and all decisions are reached voluntarily. Family matters can remain private matters. Selection of experts, such as appraisers, financial planners, and mental health professionals, can be made individually or as part of the collaborative divorce process. Given this framework, suspicion and paranoia about the other side’s strategy or intentions decline dramatically.

Initially, a collaborative lawyer will lay a foundation for successful representation by communicating a great deal of information to the client about the process. There are clear expectations that need to be adopted by all parties so that a resolution of all disputes can be conducted in a civilized manner. Many of the negotiations are done in a four-way setting with each participant being represented by counsel throughout the process. The parties, therefore, do not “hide” behind their lawyers. There is a loosely structured choreography that is followed by the collaborative law professionals. There are pre- and post-meeting sessions between a single attorney and his or her client and the two attorneys themselves may sometimes meet to discuss ways to resolve issues in an amicable and collaborative fashion. Unlike a traditional litigation setting, the opposing attorney can speak directly to the other lawyer’s client in four-way meetings. This maximizes the group’s potential for creative problem solving and exposes any obstacles to resolution.

It is estimated that most collaborative law cases take between two and ten four-way meetings before resolution. The final stages of the process involve the attorneys handling technical tasks of preparing court papers and written agreements. The process usually concludes by way of a four-way meeting to help clients reflect upon their successes, generosity, and acts of goodwill, and to discuss their combined protocol for handling future issues and disputes. If nothing else, this last meeting symbolizes a ceremonial marker, a finalization of a unique process with a successful outcome.

In Collaborative Divorce, The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, Pauline Tesler and Peggy Thompson, two collaborative law innovators who train professionals around the world, walk you through the stages of collaborative divorce while stressing the team approach. Time and time again, they have found that with the assistance of two lawyers trained in collaborative law, and in appropriate cases, along with two coaches, a financial consultant, and a child specialist (when needed), a separating couple will be able to focus on the needs of everyone who will be directly affected by the divorce. This paradigm shift away from adversarial litigation empowers you – not lawyers or a judge – to shape the outcome of your divorce.

While collaborative law is not for everyone or every situation, special care should always be taken when hiring an attorney to represent you in a family law case. Once you have met with the attorney, explained your case, and had your questions answered, there are some questions you should ask yourself:

• Will I feel comfortable working closely with this person?
• Do I feel confident in the lawyer’s experience and level of skill to handle my case?
• Do I understand the lawyer’s explanation of what my case involves?
• Do I understand the proposed fee agreement?
• Do I trust this person to handle my most personal matters?

If you feel comfortable with the attorney and confident that their experience is adequate for your case, you have probably found a good match. Asking and answering the above questions will go a long way in determining if this is the right attorney for you.

Hopefully, with the basic introduction to collaborative law you can begin to see that it sure beats the alternatives of going to court in a contested case. If you cannot grasp this, perhaps it is you who is the stumbling block to an amicable resolution. We hope not.

Getting the other party on board:

One of the most frustrating feelings that superior parents face during a tumultuous separation and divorce occurs when they “get it” – and the other side doesn’t. When you realize that there is nothing to gain by constantly and continually fighting over and about your children and their parent-child relationships, you will want to do all that you can to collaborate, cooperate, and compromise when appropriate. Once you realize that the goal is to make life better for you and your children, it can become truly frustrating to deal with an ex who doesn’t realize that. When the other parent is still in fight mode, peaceful resolutions are few and far between. Progress is often short lived.

So, how do you get the other parent on board with superior parenting? Quite simply, if the other parent is drowning in their own misery (and trying to drown everyone else too), you need to throw the other parent a metaphoric lifeline. (No, not the one with the heavy weight attached to it.) Basically, unless you help the other parent get on board, all of your best intentions will be of minimal consequence.

Here are some excellent ways to promote and foster positive parental action. Search out articles and books on topics about separation and divorce and its effects on children. Learn how to be a better communicator, a better listener. Learn how to put things into perspective. Work on you. Decide to be the best parent that you can be under whatever circumstances you find yourself. Learn to accept what you cannot change and to change what you can. Attend co-parenting workshops, lectures, and seminars. Listen to the CDs and watch DVDs. In short, become a student of positive parenting.

Gather as many resources as you can. Sift through it all and when you find gems, share them with your ex. That’s right – share them with the other parent. You see, usually the parent most in need of help and guidance doesn’t recognize it. After all, everything is your fault, right? Sound familiar? Well, no one like that wants to be outdone, especially by a no-good scoundrel like you. Are you following me here?

So, if you let the other parent know that you have done this, read that, signed up for a class, or purchased something that they have not, sooner or later the desire to be in control may just lead them down the right path. They may get there only because they think that you are “up to something,” but it doesn’t matter how or why they get there. They just need to hear enough of the right information from the right people. If that takes some direct help or even surreptitious assistance from you, so be it. It is for the betterment of your children’s lives and it sure would make yours run smoother if the other parent practiced some of what you already know. It is truly in helping others that we help ourselves.

Remember though, generally, if you suggest ideas and options you may not get heard. It won’t register with some. You need to provide the opportunities for someone else, an authority, an expert or anyone for that matter to provide your ex with valuable information. Then, hope and pray that some of it sinks in. Act in conformity with what you have learned and leave the powers of persuasion to someone else.

In some situations, you may choose to write the other parent a short, non-judgmental note that refers them to something that, if followed, would be helpful.

Here is an example:

Dear Wilma:

I recently read a good book and it has caused me to stop and reflect on the past as well as think about the present and future. I feel there are many things that could be improved upon when it comes to the way we interact as parents to our children, especially during these challenging times. Wilma, you may have the enclosed copy of Stop Fighting over the Kids: Resolving Day-to-Day Custody Conflict in Divorce Situations. Reading this book has taught me a lot. In many instances, I saw myself and I have recognized some areas that I would like to improve upon. I will continue to look for resources like this to improve our future co-parenting. I imagine you, too, have done some research on related topics. I invite you to share any information that you think would be helpful. I just thought that it might be good if we both hear and evaluate the same information. Thanks for listening.

Sincerely,

Fred