Before any formalized law, such as the ancient Irish Brehon codes, man simply resolved differences by the club, spear or sword. Later, we evolved to what became known as “Trial by Battle” in the early centuries of the first millennium. This process involved the accuser and the accused facing each other in a formal duel. “It was believed that God would be on the side of the innocent.” Encyclopedia Britannica In fact, if during the brawl the accused killed or caused the accuser to withdraw the charges, then he was acquitted. But as in all things legal, there was a loophole: if he survived the entire day’s combat, he was, likewise, acquitted. How far we have evolved at resolving differences!
For the last 500 plus years, our society has benefited from the court system, which, in the matter of divorce, involves an official acting in the capacity of the giver of law and trier of fact—a judge. But we may have come to the point in the evolution of society where the traditional court, and its centuries’ old system of adversarial law, has been surpassed. The traditional system, involving invasive, public, costly and emotionally damaging acts to resolve marital disputes now seems as barbaric as the feudal form of dispute resolution by the sword.
A change is needed. In fact, the judges will tell you that no one knows the facts in a case better than the parties and their attorneys. This is the usual warm-up talk our family judges give before sending the parties off to mediate, which is mandatory before the court will give our clients here in Jersey a trial date. They are right, of course. A single person sitting for hours, days or even weeks presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is a given fact, and is due to the reality that marital breakups are too complicated to resolve by just one person. Some issue or issues are likely to be left unresolved or one or both parties will be so upset by the decision, that years of post-judgment litigation is a certainty.
But the change is here, and it is called collaborative law. It presents a better and more dignified way in which to resolve marital disputes, and with the least amount of damaging stress to the family. In fact, this evolved form of dispute resolution has already spread through Canada, Europe and into South West Asia. (BTW: Did you read that the Richie’s were going to collaboration? Actually, I thought that Madonna would have preferred public exposure (ugh!), but she is a mom first and knows that’s not the way to go.) Collaboration is quickly growing as the first choice for dispute resolution among couples, because people realize that this is a common sense way to handle the most sensitive issues we have within our families.
If we litigators, whom have been on the front lines all these years and have witnessed the pain of divorce on all family members, are telling you that the system needs to change, then take our free advice and choose, if you must, a better way to divorce.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Friday, October 31, 2008
Tuesday, September 23, 2008
A Missed Opportunity
I have noted before that my parents divorced just six years ago. What I did not mention was that shortly after Mom and Pop's traditional divorce, she was clinically diagnosed with Alzheimer’s disease. During the divorce, I had sensed something was wrong with Mom and so did Pop, but Mom had gone to an attorney and started the divorce process premised upon her belief that that he was unfaithful, stealing from her, etc. There was nothing we could do, because their divorce was in the "system" and pretty much out of control. The final fees associated with their divorce action exceeded $40,000.00. There were no motions or trial expenses added to the final sum for this uncontested divorce.
Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.
In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage's break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.
What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team's mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.
Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP's time and expertise: nor the attorneys' or the judge's. What benefit is there in this traditional process to the couple or their children?
Many collaborative law groups, including mine, the New Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.
There is a happy ending to Mom and Pop's story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words to him the day before she passed were "thank you."
Thanks for reading.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact you’re county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.
In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage's break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.
What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team's mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.
Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP's time and expertise: nor the attorneys' or the judge's. What benefit is there in this traditional process to the couple or their children?
Many collaborative law groups, including mine, the New Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.
There is a happy ending to Mom and Pop's story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words to him the day before she passed were "thank you."
Thanks for reading.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact you’re county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Thursday, July 10, 2008
Central Jersey Collaborative Law Group Forms
On June 16, 2008, the Central New Jersey Collaborative Law Group (CJCLG) was formed making it the fourth collaborative practice group in New Jersey (the others being Jersey Shore CLG, North Jersey CLG and the Alliance CLG). There are thirty members in this new group. The CJCLG is an interdisciplinary organization with members coming from the legal, mental health and financial professions. During the organizational meeting, the membership elected Joe Noto and Ken Rempell for president and vice-president, respectively.
The majority of the CJCLG membership practice in Hunterdon, Somerset, Morris, and Union Counties.
I too am a member of this nascent group and will report further on our progress. Our first mission is to inform the public about the collaborative option and its benefits compared to other forms alternative dispute resolution.
The majority of the CJCLG membership practice in Hunterdon, Somerset, Morris, and Union Counties.
I too am a member of this nascent group and will report further on our progress. Our first mission is to inform the public about the collaborative option and its benefits compared to other forms alternative dispute resolution.
Thursday, May 15, 2008
A comparison of mediation to collaboration
Most people are aware that mediation is a process in which usually one mediator attempts to facilitate the two separating parties toward a framework for a settlement. Issues such as custody, parenting time, equitable distribution of assets (and debts) and alimony are addressed in the course of mediation with the goal of arriving at a Memorandum of Understanding (“MU”). At this point, if not before, the mediator should advise the parties to retain separate attorneys for the purpose of reviewing the MU and advising them separately concerning the terms of the agreement and whether they should proceed with the drafting of a Property Settlement Agreement reflecting these terms (plus the usual boilerplate language typical of settlements, but not required in the MU).
In many cases, particularly where the separating parties are able to effectively communicate and have equal bargaining strengths, this traditional form of Alternative Dispute Resolution process is effective. However, there are pitfalls with mediation that should be considered before making the choice:
Unequal Bargaining Skills.
In situations where Spouse A is traditionally the dominant mate, and Spouse B is unable to change the dynamic and, uncharacteristically, assert themselves, the mediation is not likely to result in an equitable and fair settlement. Under these circumstances, the mediator may try to counterbalance this difference in personalities, but they do so at their peril.
The mediator’s essential leverage is gained through the mutual trust earned from the parties, and the mediator achieves this in great part by remaining objective and neutral. Also, trust is built by displaying keen knowledge about the divorce process as well as life issues faced by both parties (parenting, career, health, etc.). It is the mediator’s job to identify the issues to be resolved and facilitate the parties to settle their differences by working together. However, if the mediator attempts to side with one party due to a perceived inability by that party to express their desires and goals, then the objectivity is lost-- as is the trust of the other party.
The Mediator is Not Your Advocate.
Because the mediator’s objectivity is key to a successful mediation, he/she cannot give the parties legal advice specific to their interests. In fact, there is great debate over whether a mediator can or should give any legal advice. The safe course is for each party to engage in separate counsel, whom would be available for conferences outside the mediation. Specifically, a party may need to know if their demands (or the other spouse’s position) concerning a specific issue are unreasonable and would likely be rejected by a judge in that jurisdiction if the issue was litigated. This is advice that the mediator cannot provide without ruining their objectivity, as well as credibility.
These are two of the most problematic issues involved in mediation.
In the collaborative process, these potential problems are avoided.
First, each party will retain an attorney trained in collaborative law. After the collaborative counsel interview the parties and conclude that they are good candidates for collaboration, then each attorney signs a participation agreement committing them to collaboration and agreeing not to represent either party should the process break down. The parties each have counsel attend the sessions to ensure that the playing ground remains level for both parties, despite the differences in the clients’ personalities. The attorneys are trained to advocate without inflaming the other party. Also, being on the scene, the attorneys can confer privately with their clients and discuss the relevant legal precedents, and the propensity of our New Jersey judges regarding the issues under negotiation. This may save the parties time, and therefore money, rather than having to suspend a mediation session to then confer with an attorney and then resume at a later date.
Second, consider that every mediation should involve two attorneys at some point, either throughout the process or at the end when a MU is circulated. Involving the attorneys in the collaborative Alternative Dispute Resolution process from the start will likely produce a stronger agreement in less time, because the counsel will have been involved in every step of the negotiations, rather than relying on snippets of the discussions from their untrained client, which can be a challenge to interpret. Moreover, if the attorneys are not involved until after the MU is completed, and it turns out that there are one or more significant issues which do not sit well with either the parties’ attorneys, then convincing the parties to divert from the terms of the MU may lead to harsh feelings and accusations of bad faith. This result will often lead to litigation and a waste of the money spent in the mediation process. Remember, anything discussed or agreed to in the mediation sessions will not be admissible in court.
These two differences are what make collaborative law so effective for many families. The critical goal of the collaborative attorney is to assist the client in arriving at a fair and equitable settlement while maintaining civility, so that both ex-spouses retain enough mutual respect and trust to enable them to converse after the divorce, which is so critical when there children yet to raise and many, many child rearing issues to resolve in the future.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
In many cases, particularly where the separating parties are able to effectively communicate and have equal bargaining strengths, this traditional form of Alternative Dispute Resolution process is effective. However, there are pitfalls with mediation that should be considered before making the choice:
Unequal Bargaining Skills.
In situations where Spouse A is traditionally the dominant mate, and Spouse B is unable to change the dynamic and, uncharacteristically, assert themselves, the mediation is not likely to result in an equitable and fair settlement. Under these circumstances, the mediator may try to counterbalance this difference in personalities, but they do so at their peril.
The mediator’s essential leverage is gained through the mutual trust earned from the parties, and the mediator achieves this in great part by remaining objective and neutral. Also, trust is built by displaying keen knowledge about the divorce process as well as life issues faced by both parties (parenting, career, health, etc.). It is the mediator’s job to identify the issues to be resolved and facilitate the parties to settle their differences by working together. However, if the mediator attempts to side with one party due to a perceived inability by that party to express their desires and goals, then the objectivity is lost-- as is the trust of the other party.
The Mediator is Not Your Advocate.
Because the mediator’s objectivity is key to a successful mediation, he/she cannot give the parties legal advice specific to their interests. In fact, there is great debate over whether a mediator can or should give any legal advice. The safe course is for each party to engage in separate counsel, whom would be available for conferences outside the mediation. Specifically, a party may need to know if their demands (or the other spouse’s position) concerning a specific issue are unreasonable and would likely be rejected by a judge in that jurisdiction if the issue was litigated. This is advice that the mediator cannot provide without ruining their objectivity, as well as credibility.
These are two of the most problematic issues involved in mediation.
In the collaborative process, these potential problems are avoided.
First, each party will retain an attorney trained in collaborative law. After the collaborative counsel interview the parties and conclude that they are good candidates for collaboration, then each attorney signs a participation agreement committing them to collaboration and agreeing not to represent either party should the process break down. The parties each have counsel attend the sessions to ensure that the playing ground remains level for both parties, despite the differences in the clients’ personalities. The attorneys are trained to advocate without inflaming the other party. Also, being on the scene, the attorneys can confer privately with their clients and discuss the relevant legal precedents, and the propensity of our New Jersey judges regarding the issues under negotiation. This may save the parties time, and therefore money, rather than having to suspend a mediation session to then confer with an attorney and then resume at a later date.
Second, consider that every mediation should involve two attorneys at some point, either throughout the process or at the end when a MU is circulated. Involving the attorneys in the collaborative Alternative Dispute Resolution process from the start will likely produce a stronger agreement in less time, because the counsel will have been involved in every step of the negotiations, rather than relying on snippets of the discussions from their untrained client, which can be a challenge to interpret. Moreover, if the attorneys are not involved until after the MU is completed, and it turns out that there are one or more significant issues which do not sit well with either the parties’ attorneys, then convincing the parties to divert from the terms of the MU may lead to harsh feelings and accusations of bad faith. This result will often lead to litigation and a waste of the money spent in the mediation process. Remember, anything discussed or agreed to in the mediation sessions will not be admissible in court.
These two differences are what make collaborative law so effective for many families. The critical goal of the collaborative attorney is to assist the client in arriving at a fair and equitable settlement while maintaining civility, so that both ex-spouses retain enough mutual respect and trust to enable them to converse after the divorce, which is so critical when there children yet to raise and many, many child rearing issues to resolve in the future.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Thursday, April 10, 2008
A litigator's view of Collaborative ADR
In February 2008, I attended a two day seminar hosted by the Jersey Shore Collaborative Law Group. Attorney Linda Piff headed the team presenting the Basic Interdisciplinary Collaborative Family Law Training up. This seminar was an eye opener for me, a litigator with twenty-years' experience. It became clear to me that collaborative law as a form of alternative dispute resolution (ADR) was not a fad, and will gain in popularity.
My background in family law is typical of practitioners in New Jersey. I have a variety of marital dissolution, post-judgment, domestic violence and custody matters, which I handle in central New Jersey; principally, in Hunterdon and Warren Counties. I have experienced family law practice becoming more complicated over these years, which is a combination of the evolving family unit and the increased bureaucracy of the Superior Court. Added to this mix are the increased numbers of litigants due to the fragility of marriages, or the post-judgment disputes between couples over child support, alimony and college-related issues.
Although the judicial bench and bar associations have worked hard to streamline the system, such as implementing court ordered mediation, often more than once in a given law suit, the fact remains that litigating any of these family issues is time consuming and very expensive. Very often the parties come away with little resolution, upset and less inclinded to communicate with their ex-spouse, which only sets the stage for more trouble and another round of legal blood-letting at a later date.
I witnessed all this first hand when my parents were divorced late in life here in the State. I also experienced the pain of a child of a divorce, even though I was in my early 40’s at the time. My family doctor counseled me that all children, regardless of their age, suffer from the fallout of divorce.
Having this background, I have attempted to address issues concerning children up-front in litigious cases. In most cases, my adversaries are receptive to this approach and we work to implement child support and time sharing issues as soon as possible to cushion the impact of the break-up on the young ones. However, all too often issues concerning the young people become extremely contentious and no doubt trickle down to them through direct disclosure by a parent, which is never acceptable, overhearing arguments or just sensing the parents’ anguish. Make no mistake, a divorce or post-divorce dispute has a very great impact on every child. Some are stronger than others and many learn to cope alone or with siblings, but that is no way to grow up. On this everyone can agree, parents and attorneys. This is often where the desire to collaborate a resolution to a break-up begins. For the kids.
So, what is the answer to this dilemma? We cannot expect divorce to stop. Moreover, the state legislature and taxpayers will not support the number or quality of judges needed to handle all these difficult matters. In the future, the court’s files may become accessible on-line, leading to less privacy than we have at this time. (The Federal Court has gone to electronic filing, so it is only a matter of time before the states follow suit.)
ADR has been in existence for many years and is often the answer for families who do not want to undergo the crucible of the legal system. Mediation has been the most common ADR utilized by families to this point. However, I believe that the collaborative law alternative will be just as popular, if not more so.
I will pick-up on the differences between mediation and collaboration in the next article. Thank you for reading through.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to www.collaborativepractice.com
© Kevin M. Kilcommons, 2008
My background in family law is typical of practitioners in New Jersey. I have a variety of marital dissolution, post-judgment, domestic violence and custody matters, which I handle in central New Jersey; principally, in Hunterdon and Warren Counties. I have experienced family law practice becoming more complicated over these years, which is a combination of the evolving family unit and the increased bureaucracy of the Superior Court. Added to this mix are the increased numbers of litigants due to the fragility of marriages, or the post-judgment disputes between couples over child support, alimony and college-related issues.
Although the judicial bench and bar associations have worked hard to streamline the system, such as implementing court ordered mediation, often more than once in a given law suit, the fact remains that litigating any of these family issues is time consuming and very expensive. Very often the parties come away with little resolution, upset and less inclinded to communicate with their ex-spouse, which only sets the stage for more trouble and another round of legal blood-letting at a later date.
I witnessed all this first hand when my parents were divorced late in life here in the State. I also experienced the pain of a child of a divorce, even though I was in my early 40’s at the time. My family doctor counseled me that all children, regardless of their age, suffer from the fallout of divorce.
Having this background, I have attempted to address issues concerning children up-front in litigious cases. In most cases, my adversaries are receptive to this approach and we work to implement child support and time sharing issues as soon as possible to cushion the impact of the break-up on the young ones. However, all too often issues concerning the young people become extremely contentious and no doubt trickle down to them through direct disclosure by a parent, which is never acceptable, overhearing arguments or just sensing the parents’ anguish. Make no mistake, a divorce or post-divorce dispute has a very great impact on every child. Some are stronger than others and many learn to cope alone or with siblings, but that is no way to grow up. On this everyone can agree, parents and attorneys. This is often where the desire to collaborate a resolution to a break-up begins. For the kids.
So, what is the answer to this dilemma? We cannot expect divorce to stop. Moreover, the state legislature and taxpayers will not support the number or quality of judges needed to handle all these difficult matters. In the future, the court’s files may become accessible on-line, leading to less privacy than we have at this time. (The Federal Court has gone to electronic filing, so it is only a matter of time before the states follow suit.)
ADR has been in existence for many years and is often the answer for families who do not want to undergo the crucible of the legal system. Mediation has been the most common ADR utilized by families to this point. However, I believe that the collaborative law alternative will be just as popular, if not more so.
I will pick-up on the differences between mediation and collaboration in the next article. Thank you for reading through.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to www.collaborativepractice.com
© Kevin M. Kilcommons, 2008
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