Collaborative law— A new way to work the old problem of divorce

If the term "collaborative law" is not already familiar to you, it soon will be. Illinois has recently joined a number of other states in forming a collaborative law institute for the education and promotion of this newest model of dispute resolution.2 In 2002, Texas became the first state in the nation to adopt a statute recognizing collaborative law as an alternative process to traditional litigation in the area of divorce.3

Although collaborative law has application to all types of disputes no matter the fact pattern, currently the model is being most widely used across the United States and in Canada in the area of family conflict. This article is meant as a brief introduction to those who are not yet familiar with the model and its emergence as an alternative to more traditional modes of conflict resolution, i.e., litigation, arbitration, mediation. Particularly, this article will concentrate on collaborative law and its application in the area of family law.

Collaborative law is the brain child of Minneapolis attorney, Stu Webb. Mr. Webb conceived the idea as an alternative to traditional civil law practice in the late 1980s. He has been practicing collaborative family law exclusively since January 1, 1990.4 He admits that the concept was born out of desperation with the incivility and schizophrenic nature of trial and family law practice. The use of this model has been called a "social movement."5 Its aim is to assist families in sorting through the many complex and emotional issues of separation and divorce in a dignified manner structured to help redefine and preserve relationships, especially where children are involved and the relationships may have to continue long after the final decree is entered.

In the collaborative law model, from the outset the participants (parties and attorneys) commit themselves to resolving differences justly and equitably and without resort, or threat of resort, to the court system. The model relies on an atmosphere of honesty, integrity, professionalism and cooperation. What attorney does not pride herself on her honesty, integrity and professionalism? Cooperation is the key component which is at odds with the "winner takes all" premise of the traditional litigation or arbitration models currently available to divorcing couples. Cooperation, although also a key component of the family law mediation model of dispute resolution, is often eroded and compromised when clients submit their mediated settlement agreements to their respective litigation attorneys for review.

Cooperation of the parties and of their attorneys on all fronts is the cornerstone of the collaborative law process. By modeling cooperative behavior, attorneys can have a significant impact on their clients. Attorneys can significantly influence their client's willingness to work within the context of this model by concentrating on disposing of issues rather then seeking the assignment of blame for past wrongs. The assignment of blame is usually the strongest instinct of divorcing couples. By diminishing the "the-us-versus-them" mentality, the collaborative law process helps divorcing parties concentrate on the various components of the "us" (children, house, car, assets, future monetary and financial needs) which must be addressed when dismantling a marriage.

The emergence of this newest model for divorce has come about as a direct result of the movement away from the concept of the lawyer solely as warrior or fighter to a more therapeutic concept of lawyer as healer and counselor. Attorneys working in the collaborative law model agree from the beginning of a case that neither will serve in the capacity of litigator to the parties they are representing. The attorney's role rather is that of legal counselor, supporting the client with legal knowledge and negotiation expertise when working through issues posed by the particular fact pattern. Attorneys assisting clients in this process agree in writing to withdraw if the parties choose to seek court intervention. Litigation, if it becomes necessary, is then handled by different counsel. Attorneys and parties agree to use all energy, resources, and monies in reaching a conclusion in which everyone's needs are addressed. This model has had much success in other states and has been so successful in Canada that it is practiced exclusively in some communities.6

For more information about education of Illinois attorneys in this model and about the newly formed Collaborative Law Institute of Illinois, the author can be reached at (312) 263-2536 or sandra@feingoldcrawford.com.

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1. This article is dedicated to the memory of Chicago family law attorney, Forrest S. Bayard, November 7, 1940 - December 29, 2002. An individual who dedicated his life and work to assisting families and couples in finding the "higher Self" during times of conflict and dispute. His contribution to the legal community will truly be missed.

2. For information regarding The Collaborative Law Institute of Illinois, a Non-Profit Corporation, visit the institute at <http://www.collablawil.org>.

3. Texas Family Code Section 6.603.

4. See AFCC Newsletter Winter, 2001, Conversation Corner, Stu Webb, Collaborative Family Law. AFCC is an interdisciplinary nationwide association of family law judges, attorneys, mediators, evaluators, court administrators, financial planners, and mental health professionals, working in collaboration to further ideas and issues to help resolve family conflict and protect the interests of families and children. <http://www.afccnet.org>.

5. Quote from Mr. James Galvin, Collaborative Law attorney, practicing in Park Ridge, Illinois, and one of the founding members of The Collaborative Law Institute of Illinois.

6. Canadian Living, "The Best Place to Get Divorced in Canada," by Terri Perrin, June 2002, pages 154-160.

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September 2003Volume 9Number 1