The newsletter of the ISBA’s Standing Committee on Women and the Law
I love this quote by Abraham Lincoln:
Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Lincoln’s charge to us lawyers can be answered by our choosing to practice collaborative law, a relatively new method of alternative dispute resolution. Collaborative law has become particularly popular as a means of resolving marital dissolution matters.
That basic tenets of collaborative law are as follows:
• The parties agree to resolve all issues in a respectful, open and honest manner, outside of the court system.
• Each party retains a collaboratively trained1 attorney.
The parties and their counsel sign a legally binding contract (called a Participation Agreement) committing themselves to resolving the dispute according to collaborative principals and guidelines. Settlement remains the main objective because the lawyers’ continued employment depends upon his or her ability to facilitate an acceptable settlement proposal. Failure to reach settlement results in the end of the collaborative divorce process and an end to the attorney’s employment because the Participation Agreement provides that collaborative counsel is prohibited from representing the client if the case goes to litigation.
A team of professionals is employed by the couple and each team member focuses on the issue that is within their respective expertise. Typical team members are a parenting specialist, financial specialist and divorce coach. The parenting specialist helps the couple resolve issues related to the children, such as custody and parenting time but also to assists the couple in developing good communication skills to foster effective post-divorce co-parenting. The financial specialist assists the couple in completing their required financial disclosure statements and determining the character and value of marital and non-marital assets. The financial specialist also assists the team by creating alternative scenarios for asset division and support, based on the parties expressed needs and interests. The couple may also employ a divorce coach whose function is to assist the client in dealing with the emotional aspects of the dissolution of marriage. Divorce coaching is not therapy, nor is it clinical in nature. The divorce coach helps the client set and achieve goals for the divorce process, teaching effective communication skills for use in the settlement meetings and making life transitions. The divorce coach can also function as a process coach by attending the meetings and facilitating communication between the participants in cases that are particularly difficult. Other team members can include business valuation experts, appraisers, estate planning attorneys and actuaries.
The collaborative process is conducted in a series of meetings during which the lawyers guide the parties through the process by providing a structured, but non-adversarial environment that focuses on the parties’ legitimate needs and interests, rather than on legal positions. Some or all of the other professionals may be in attendance at the meetings, depending upon the subject being addressed at that meeting. Sometimes, the clients will meet together with one of the other professionals (without the lawyers) to work on issues solely involving parenting or financial matters.
Once agreement is reached, the collaborative attorneys draft the necessary documents and present the agreements to the judge for approval and entry of judgment.
A collaborative process differs from a litigated process in many respects, some obvious, some not so obvious. Among the more obvious differences are timing, cost, the use of experts and the manner of resolution of disputed issues. A collaborative process proceeds at the pace that the parties require, rather than at the pace the court dictates in a litigated case. Because a collaborative case is not filed with the court until all agreements have been reached, there is a significant cost savings to the clients through the elimination of multiple routine status calls. If an experts is needed, for issues involving custody or business valuation for example, the parties jointly retain one expert to help them resolve the dispute. In the litigation model, each party retains an expert (hired gun) to advocate for their position and to win that issue in court. Finally, the manner of resolving disputed issues in a collaborative case is dramatically different than in a litigated case. The collaborative team creates a list of issues to be resolved, giving great deference to the legitimate needs and interests of the clients and their family unit. A problem solving approach is used and multiple, creative options are generated. When an agreement is reached, each of the parties is satisfied because they have been heard and involved in the resolution of the issue. In a litigation model, the issue is framed by lawyers who use case law to argue for their client’s position. The decision is made by a judge who does not know the parties or their children and must rule based on the narrow range of options contained in established law and case precedent, whether or not such a ruling meets the legitimate needs of the family.
Among the less obvious differences between collaborative law and litigation is what happens to the people involved in each process, primarily the clients and the lawyers. It is well documented that a litigated divorce is among the most stressful life events that a person can undergo. Any divorce litigator can attest to the personal toll that the profession takes on his or her life. We are constantly in reactive mode, awaiting the next motion, petition or argument. Our entire caseload is comprised of clients experiencing a life crisis and we are not equipped with the tools to help them emotionally.
In a collaborative divorce, it is expected that all of the parties will treat one another in a respectful and dignified manner, and they do. The emotions, feelings, needs and interests of the clients are valued and respected. The attorneys and other professionals are working together to help the couple, rather than working against one another to win.
I can tell you from personal experience that my choice to practice collaboratively has dramatically impacted my job satisfaction as a matrimonial lawyer. I work with a fine group of professionals who are dedicated to resolving disputes respectfully. My clients’ legal, emotional and financial needs are attended to by the professional best suited, by training and experience, to meet those very different needs. Because my clients are happy with the process, they recommend collaborative divorce to friends and acquaintances which results in an increase in referral business. Post-decree issues are virtually non-existent because the parties were actively involved in crafting and understanding their own settlement, they deal with future conflict by agreement rather than litigation.