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