HUNTERDON COUNTY BAR ASSOCIATION SEMINAR
COLLABORATIVE LAW AS A VIABLE CDR
PRESENTED ON NOVEMBER 30, 2010
Presenters: Kevin M. Kilcommons, Esq. and Patricia Garity Smits, Esq.
“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.”*
*ABRAHAM LINCOLN, NOTES FOR A LAW LECTURE (1850[?]), in THE LIFE AND WRITINGS OF ABRAHAM LINCOLN 327, 328 (Philip Van Doren Stern ed., 1940).
I. THE EVOLUTION OF CDR TO COLLABORATIVE LAW: HISTORIC PERSPECTIVE.
Before any formalized laws, 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-off 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 the accused 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. But we may have come to the point in the evolution of society where the traditional court, and the centuries-old system of adversarial law, is not sufficient to address today’s societal needs. Traditional dispute resolution (invasive, sometimes public, always costly and emotionally damaging) can seem to our clients at times as barbaric as the feudal form of dispute resolution by the sword – and many might again prefer this later option as a time and money saver.
The pressure for change has fueled the Alternative Dispute Resolution/ CDR surge over the past fifteen years. These methods have now been institutionalized in the form of mediation and non-binding arbitration within the Courts, which have become vital tools to reduce calendar backlogs. This change was inevitable and effective. In fact, our judges acknowledge that a single person presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is fact, and is due to the reality that marital breakups are too complicated to resolve –with lasting results-- by just one person. Some issue or issues will sometimes be left unresolved or a party will come away from a judgment so dissatisfied, that years of post-judgment litigation becomes a certainty.
Now, a further evolution of ADR is taking place, and it is collaborative law. Collaborative law as an evolved form of dispute resolution began in the early 1990’s in the Mid-West and has already spread through Canada, Europe and into South West Asia. The collaborative practice is not limited to family law, as it is just as effective in Probate/Trust and Estates, Healthcare, Employment , and Construction. The purpose of this presentation is to introduce the practitioner with the basic elements of collaborative law, its current status and how it can be employed to effectively resolve disputes outside of court.
Adopted from “Trial by Battle,” Kevin M. Kilcommons, 2008 (www.collaborativeinjersey.blogspot.com)
II. COLLABORATIVE LAW FACTS (from the Uniform Collaborative Law Act, July 2009):
Definition:
Collaborative law is a voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter rather than having a ruling imposed upon them by a court or arbitrator. The distinctive feature of collaborative law, as compared to other forms of alternative dispute resolution such as mediation, is that parties are represented by lawyers (“collaborative lawyers”) during negotiations. Collaborative lawyers do not represent the party in court, but only for the purpose of negotiating agreements. The parties agree in advance that their lawyers are disqualified from further representing parties by
appearing before a tribunal if the collaborative law process ends without complete agreement
(“disqualification requirement”). See William H. Schwab, Collaborative Lawyering: A Closer
Look at an Emerging Practice, 4 PEPP. DISP. RESOL. L.J. 351, 358 (2004).
Parties thus retain collaborative lawyers for the limited purpose of acting as advocates and counselors during the negotiation process.
Positional and Problem Solving Negotiations and the Disqualification Requirement:
The goal of collaborative law is to encourage parties to engage in “problem-solving”
rather than “positional” negotiations. See ROGER FISHER ET AL., GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 4-14 (2d ed. 1991). Under a positional approach to negotiation,
the parties see the negotiation process as a contest to be won by one side at the expense of the
other. Id. at 6. Parties to positional negotiations often assume an extreme starting position, and
make small concessions within their predetermined bargaining range usually in response to
concessions made by the other side or threats. Id. If they do not find a meeting point of
agreement between their positions, negotiations break down and litigation ensues. JULIE
MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW
81-84 (2007) [hereinafter MACFARLANE, NEW LAWYER].
In contrast, parties who follow a problem-solving, or what is sometimes referred to as
interest-based, approach to negotiation promoted by collaborative law view a dispute as the
parties’ joint problem that needs to be solved. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 759-60 (1984).
Under this approach, the negotiation process focuses on the parties’ underlying “needs, desires, concerns, and fears” and not only on the parties’ articulated positions. FISHER ET AL., supra, at 40. A problem-solving approach assumes that “[b]ehind opposed positions lie shared and compatible interests, as well as conflicting ones,” and that looking at interests rather than positions is beneficial because “for every interest there usually exist several possible positions that could satisfy it.” Id. at 42. Accordingly, a problem-solving negotiator focuses on “finding creative solutions that maximize the outcome for both sides.” Peter Robinson, Contending with Wolves in Sheep’s Clothing: A Cautiously Cooperative Approach to Mediation Advocacy, 50 BAYLOR L. REV. 963, 965 (1998). Lawyers can and do, of course, encourage clients to engage in problem-solving negotiations without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the disqualification requirement—the enforcement mechanism that parties create by contract to ensure that problem-solving negotiations actually occur. The disqualification requirement enables each party to penalize the other party for unacceptable negotiation behavior if the party who wants to end the collaborative law process is willing to assume the costs of engaging new counsel. “[E]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through settlement.” Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. DISP. RESOL. 131, 133 (2008).
Because of these mutually agreed upon costs of failure to agree, collaborative law is a
modern method of addressing the age old dilemma for parties to a negotiation of assuring that
“one’s negotiating counterpart is and will continue to be a true collaborator rather than a
‘sharpie.’” Ted Schneyer, The Organized Bar and the Collaborative Law Movement: A Study in
Professional Change, 50 ARIZ. L. REV. 289, 327 (2008). It solves the age old problem for
negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other’s intentions and “when the pursuit of self-interest by each leads to a poor
outcome for all” —the famous “Prisoner’s Dilemma” of game theory. ROBERT ALEXROD, THE
EVOLUTION OF COOPERATION 7 (1984).
Multiple Models of Collaborative Law Practice:
To encourage problem-solving negotiations, collaborative lawyers emphasize that no
threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue. See GLOBAL COLLABORATIVE LAW COUNCIL, PARTICIPATION AGREEMENT 3
(2004), available at http://www.collaborativelaw.us/articles/GCLC_Participation_Agreement_With_Addendum.pdf.
Parties in collaborative law generally agree to disclose information voluntarily, without formal
discovery requests, and to supplement responses to information requests previously made with
material changes. See id. at 4. Many models of collaborative law require parties to engage jointly retained mental health and financial professionals in advisory and neutral roles—for example, a divorce coach, appraiser, and child’s representative—rather than as consultants or trial witnesses hired by one party but not the other. See John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L.J. 1315, 1321 n.21 (2003) [hereinafter Lande, Possibilities for Collaborative Law]; FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK: HELPING FAMILIES WITHOUT
GOING TO COURT 106-07 (2009). Sometimes, collaborative law participation agreements require
that negotiations take place in meetings in which parties are the primary negotiators and their
lawyers encourage focusing on underlying interests, sharing information, and brainstorming
solutions to problems. GLOBAL COLLABORATIVE LAW COUNCIL, supra, at 2-3. Typically, in order
to promote problem solving negotiations, collaborative law participation agreements provide that communications during the collaborative law process are confidential and cannot be introduced as evidence in court. See id. at 4-5; see also N.Y. Association of Collaborative Professionals, Participation Agreement, http://collaborativelawny.com/participation_agreement.php (last visited Oct. 23, 2009).
Collaborative Law Compared to Mediation:
Mediation and collaborative law are both valuable alternative dispute resolution
processes that share common characteristics. They do have differences that might make one
process more or less attractive to parties.
Both collaborative law and mediation offer parties the benefits of a process to promote
agreement through private, confidential negotiations, the promise of cost reduction, and the
potential for better relationships. Both mediation and collaborative law encourage voluntary
disclosure and an ethic of fair dealing between parties. Parties in both mediation and
collaborative law are likely to experience greater voice in the process of settlement than in a
judicial resolution (self-determination) and are more likely to be satisfied with the process as
compared to litigation. See Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on
a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885, 191 (1998).
Mediation and collaborative law do, however, have differences which might make
collaborative law more or less attractive to some parties as a dispute resolution option. A neutral is not present during a collaborative law process negotiation sessions unless agreed to by the parties, while mediation sessions are facilitated by a neutral third party. MODEL STANDARDS OF CONDUCT FOR MEDIATORS pmbl. (2005). As will be discussed infra, parties can participate in mediation without counsel but cannot do so in collaborative law. In many states parties do not have the protection of mediators being a licensed and regulated profession and bound by its rules of professional responsibility. Collaborative lawyers, in contrast, are licensed and regulated members of the legal profession. Mediators, as neutrals, cannot give candid legal advice to a party while collaborative lawyers can. Mediators, as neutrals, are also constrained in redressing imbalances in the knowledge and sophistication of parties. See, e.g., MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard II(B) (2005) (“A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”); RULES OF THE CHIEF ADMIN. JUDGE, 30 N.Y. Reg. 93 (July 30, 2008) (detailing the neutrality requirement for mediators in New York); MODEL STANDARDS OF PRACTICE FOR FAMILY & DIVORCE MEDIATION Standard IV (Symposium on Standards of Practice 2000) (“A family mediator shall conduct the mediation process in an impartial manner.”). Despite their limited purpose of representation in negotiating a resolution of a dispute, collaborative lawyers are not neutrals but are advocates for their clients.
The Origin and Growth of Collaborative Law:
The concept of collaborative law was first described by Minnesota lawyer Stu Webb
approximately eighteen years ago in the context of representation in divorce proceedings, the
leading subject area for collaborative law practice today. Stu Webb, Collaborative Law: An
Alternative for Attorneys Suffering ‘Family Law Burnout,’ 13 MATRIMONIAL STRATEGIST, July
2000, at 7, 7. Since then, collaborative law has matured and emerged as a viable option on the
continuum of choices of dispute resolution processes available to parties to attempt to resolve a matter.
Examples of its growth and development include:
• Roughly 22,000 lawyers worldwide have been trained in collaborative law. Telephone
Interview by Ashley Lorance with Talia Katz, Executive Dir., Int’l Acad. of
Collaborative Prof’ls (Feb. 17, 2009) (on file with reporter) [hereinafter Interview with
Talia Katz]. See Christopher M. Fairman, A Proposed Model Rule for Collaborative Law,
21 OHIO ST. J. ON DISP. RESOL. 73, 83 (2005) (noting that there are “more than 4,500
lawyers trained in collaborative law” nationwide (citing Jane Gross, Amiable Unhitching,
with a Prod, N.Y. TIMES, May 20, 2004, at F1)).
• Collaborative law has been used to resolve thousands of cases in the United States,
Canada, and elsewhere. Christopher M. Fairman, Growing Pains: Changes in
Collaborative Law and the Challenge of Legal Ethics, 30 CAMPBELL L. REV. 237, 239
(2008) [hereinafter Fairman, Growing Pains].
• The International Association of Collaborative Professionals (IACP), the umbrella
organization for collaborative lawyers, has more than 3,600 lawyer members. Interview
with Talia Katz, supra. (https://www.collaborativepractice.com/)
• Collaborative law practice associations and groups have been organized in virtually every
state in the nation and in several foreign jurisdictions. See International Academy of
Collaborative Professionals,
http://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups (last visited Oct.
24, 2009).
• A number of states have enacted statutes of varying length and complexity which
recognize and authorize collaborative law. See, e.g., CAL. FAM. CODE § 2013 (West 2004
& Supp. 2009) (defining “collaborative law process” and authorizing parties to agree in
writing to use of the process); N.C. GEN. STAT. §§ 50-70 to -79 (2007) (authorizing the
use of collaborative law as “an alternative to judicial disposition of issues arising in a
civil action”); TEX. FAM. CODE ANN. § 6.603 (Vernon 2006) (governing collaborative law
agreements for divorcing parties); TEX. FAM. CODE ANN. § 153.0072 (Vernon 2008)
(governing collaborative law agreements for parent-child relationship).
• A number of courts have taken similar action through enactment of court rules. See, e.g.,
MINN. R. 111.05, 304.05 (2008) (defining collaborative law and detailing scheduling and
application of additional ADR requirements); CONTRA COSTA COUNTY, CAL., LOCAL CT.
R. 12.5 (“Contra Costa County Superior Court strongly supports the use of the
collaborative law process . . . .”); L.A. COUNTY, CAL., LOCAL CT. R. 14.26 (detaining the
designation, contested matters, and termination of collaborative law cases); S.F. COUNTY,
CAL., LOCAL CT. R. 11.17(B), (E) (including collaborative law in its definition of ADL
procedures and specifying the requirements for its use); SONOMA COUNTY, CAL., LOCAL
CT. R. 9.26 (“Sonoma County Superior Court strongly supports the use of the
collaborative law process . . . .”); LA. DIST. CT. R. tit. IV, ch. 39, R.39.0 (defining
collaborative divorce procedures in Louisiana’s twenty-fourth judicial district court);
UTAH ADMIN. CODE r. 4-510 (2009) (defining collaborative law and outlining the
responsibilities of ADL providers).
• The first empirical research on collaborative law found generally high levels of client and
lawyer satisfaction with the process and that negotiation under collaborative law
participation agreements is more problem solving and interest based than those in the
more traditional adversarial framework. [See infra for a review of reported New Jersey collaborative cases.] See JULIE MACFARLANE, CAN. DEP’T OF JUSTICE, THE EMERGING PHENOMENON OF COLLABORATIVE FAMILY LAW (CFL): A QUALITATIVE STUDY OF CFL CASES 57, 77-78 (2005) available at http://www.justice.gc.ca/eng/pi/fcyfea/ lib-bib/rep-rap/2005/2005_1/pdf/2005_1.pdf [hereinafter MACFARLANE, EMERGING PHENOMENON]; see also MARK SEFTON, COLLABORATIVE FAMILY LAW: A REPORT FOR RESOLUTION 43-48(2009) (similar findings in first empirical evaluation of cases in collaborative law process in England and Wales); Julie Macfarlane, Experiences of
Collaborative Law: Preliminary Results from the Collaborative Lawyering Research
Project, 2004 J. DISP. RESOL. 179, 200 (2004). It found no evidence that “weaker”
parties fared worse in collaborative law than in adversarial based negotiations.
MACFARLANE, EMERGING PHENOMENON supra, at 57, 77.
• Former Chief Judge Judith S. Kaye of New York established the first court based
Collaborative Family Law Center in the nation in New York City. JUDITH S. KAYE, N.Y.
STATE UNIFIED COURT SYS., THE STATE OF THE JUDICIARY 11 (2007). In announcing the
Center, Chief Judge Kaye stated: “[w]e anticipate that spouses who choose this approach
will find that the financial and emotional cost of divorce is reduced for everyone
involved—surely a step in the right direction.” Id. at 12. The Center began operations on
6 September 1, 2009. Press Release, Ann Pfau, Chief Admin. Judge, N.Y. State Unified
Family Court Sys., Collaborative Family Law Center to Make Divorce Process Easier
New Center to Reduce Stress, Expense and Time Involved in Matrimonial Cases (Sept. 1,
2009), available at http://www.courts.state.ny.us/press/pr2009_15.shtml.
• The American Bar Association Dispute Resolution Section has organized a Committee
on Collaborative Law. American Bar Association, Collaborative Law Committee,
http://www.abanet.org/dch/committee.cfm?com=DR035000 (last visited Oct. 24, 2009).
The Collaborative Law Committee has an active Ethics Subcommittee engaged in the
codification of the standards of practice for collaborative lawyers. SUMMARY OF ETHICS
RULES GOVERNING COLLABORATIVE LAW intro. (Discussion Draft 2008) (discussing the
ways in which “[c]ollaborative [p]ractice is consistent with the rules of ethics for
lawyers” and is an important method for achieving fair settlements).
• Collaborative law is developing worldwide. Australia, Austria, Canada, the Czech
Republic, France, Germany, Ireland, Israel, New Zealand, Switzerland, the United
Kingdom, and Uganda all report collaborative law activity. Robert Miller, How We Can
All Get Along, DALLAS MORNING NEWS, Sept. 3, 2008, at 2D. For example:
o Collaborative law has grown rapidly in Canada since its introduction in 2000—
from 75 lawyers trained in collaborative practice to more than 2,800 in 2009.
Susan Pigg, Collaboration, Not Litigation: Many Divorcing Couples Are Sitting
Down Together, Along with Their Lawyers, To Hammer Out Agreements,
TORONTO STAR, Jan. 28, 2009, at L01.
• Many professionals from other disciplines, especially financial planning and psychology,
have been trained to participate in collaborative law. See Gary L. Voegele et al.,
Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better
Outcomes, 33 WM. MITCHELL L. REV. 971, 976 (2007) (citing Pauline H. Tesler & Peggy
Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your
Family, Resolve Legal Issues, and Move on with Your Life 41-50 (2006)).\
· Since the Uniform Law was issued, the list of countries in which collaborative law is practiced has grown, including the following:
Australia
Austria
Bermuda
Canada
Czech Republic
United Kingdom
France
Germany
Ireland
Israel
Italy
Netherlands
Switzerland
Collaborative Law’s Benefits to Parties, their Children and the Public:
Experience to date indicates that collaborative law is a valuable dispute resolution for
those parties who choose to participate in it with informed consent. Like other alternative dispute resolution processes, collaborative law reduces the costs of dispute resolution for parties and emphasizes the importance of party self-determination. Collaborative law also has significant benefits to the public by saving scarce judicial resources, in promoting peaceful, durable resolution of disputes and a positive view of the civil justice system by participants and the general public.
The needs of children are particularly implicated in divorce cases, as children exposed to high levels of inter-parental conflict “are at [a higher] risk for developing a range of emotional and behavioral problems, both during childhood and later in life.” John H. Grych, Interparental Conflict as a Risk Factor for Child Maladjustment: Implications for the Development of Prevention Programs, 43 FAM. CT. REV. 97, 97 (2005); see also INTERPARENTAL CONFLICT AND CHILD DEVELOPMENT: THEORY, RESEARCH, AND APPLICATIONS (John H. Grych & Frank D. Fincham eds., 2001); Joan B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 39 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 963-64 (2000).
III. FAQs (from the International Academy of Collaborative Professionals Web Site)
How does Collaborative Practice actually work step by step?
When you decide on a Collaborative Practice divorce, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your lawyers. Additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final divorce agreement.
What is a Collaborative Team?
A Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and your Collaborative lawyers. In addition to your Collaborative lawyers, you can choose to include a neutral financial professional, divorce coaches, a child specialist or other specialists you and your spouse believe would be helpful. Your "Collaborative team" will guide and support you as problem-solvers, not as adversaries.
Is Collaborative Practice a faster way to get a divorce?
Your situation determines how quickly your divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving—instead of blame and grievances—there’s an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce.
How does Collaborative Practice focus on the future?
Divorce is both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family’s goals for a smoother transition to the next stage of your lives.
http://www.collaborativepractice.com/
IV. What the Clients have said about their Collaborative Divorce (from IACP Client Experience Survey, 2007)
(Study results based upon 84 responses representing 71 cases)
Who are the Survey Respondents and how do they learn about Collaborative Practice?
Sixty percent (60%) of the 84 clients responding to Client Experience Surveys as of August 24, 2009, had been married over 15 years and 84% of them had been married 11 years or longer. Eighty-five percent (85%) of both clients in a proceeding were in their first marriage. (Approximately an equal number of males and females responded.) Most had worked with a mental health professional before entering the Collaborative Practice process; 62% of the clients had been in marital or couples counseling. Yet, only 11% of them heard first about the process from a mental health professional; an equal number learned about it from the person who served as their collaborative lawyer. Twenty-six percent (26%) of clients heard about the process from their spouse, 18% learned about the process from a friend, and 18% by use of the internet. The first collaborative professional with whom 91% of the clients met was one of the collaborative lawyers who served on the case; 85% met first with their own collaborative lawyer.
What other processes did the clients consider before choosing Collaborative Practice?
Eighty-five percent (85%) of the clients were informed about the traditional court process/litigation as an option prior to using the Collaborative process, but only 29% considered using the option. Fifty-nine percent (59%) of clients were informed of mediation as a process option, but only 18% considered using mediation. The option most often considered was "doing it yourself," considered by 46% of the clients, with an additional 48% of clients having been informed of the option.
Why did the clients choose Collaborative Practice over the traditional litigation process?
The most commonly cited reasons were their expectations that the Collaborative Practice process would yield them a better outcome, would better focus on what was most important to them and would be a less confrontational, adversarial process. They also expected it to be more respectful, less stressful, and provide more control to them over the outcome.
How satisfied were the clients with Collaborative Practice?
Seventy-eight percent (78%) were somewhat satisfied or extremely satisfied with Collaborative Practice overall, 77% were somewhat or extremely satisfied with the process, and 72% were somewhat or extremely satisfied with the outcome. Eighty percent (80%) would probably or definitely recommend the process to others.
What did the clients think about the fees?
Eighty-three percent (83%) thought their lawyer's fees were somewhat reasonable or very reasonable. They were not asked to rate the other participant's legal fees, because they would not have enough information to evaluate them. Of those whose cases involved another discipline (40% involved one or more mental health professionals and 55% involved a financial professional), 80% with mental health professional(s) rated those fees as somewhat or very reasonable, and 76% with a financial professional rated their fees as somewhat or very reasonable.
What was most satisfying about the services rendered by the professionals?
The client's lawyers, the mental health professional(s), and financial professional received high ratings (more than somewhat satisfied) for their listening and maintaining respect for the clients and the client's viewpoint. Additionally, the highest ratings by discipline were: the client's lawyer, explaining matters so that the client understood what was happening at each stage of the case; the financial professional, maintaining neutrality, when serving as a neutral; and the mental health professional, managing communication between all team members.
http://www.collaborativepractice.com/_t.asp?T=Survey
V. QUESTIONS LAWYERS HAVE ABOUT COLLABORATIVE LAW
1. Why will most clients benefit from collaborative law?
Most attorneys handling divorce, custody and other family matters quickly realize that the law doesn’t deal with relationships. Traditional litigation does not help clients make the necessary transition to post-judgment relationships for them and for their children. Often there are issues that are not resolved as part of a final settlement. We resolve what needs to be resolved but don’t deal with issues that the parties will be faced with in the future. Moreover, the process doesn’t provide the parties with the skills necessary to negotiate in the future. Any lawyer who has tried a divorce case to conclusion realizes that our trial judges decide issues that need to be decided now and do not decide issues that the parties will be faced with in the future. This can create needless litigation in the future.
The process of handling a divorce collaboratively encourages parties to focus on relationships as well as the substantive issues. The team approach to dealing with the case permits the lawyers to deal with legal issues and others with expertise in financial matters and mental health to assist in these areas.
Having a financial expert on the team enables the parties and lawyers to obtain assistance from a person with financial expertise. Mental health professions acting as coaches assist clients in learning how to deal with child related issues. For example, in traditional litigation we focus on a parenting time schedule but not how to deal with parenting time in the future when the children’s needs may change. The mental health professionals are not treating or assessing the clients. They are working with them to achieve resolutions that will benefit the entire family. Involving mental health experts as team members also allows the lawyers to focus on legal issues without ignoring important and critical family issues. The parties can deal with child related issues with someone trained to assist in these areas. The mental health coach can also help people deal with the inevitable conflicts that arise in more constructive ways.
Lawyers also realize is that it is not possible even in the most comprehensive settlements and Agreements [Property Settlement Agreement/ Marital Settlement Agreement] to anticipate all the issues that can arise post-judgment. The team approach in a collaborative case makes it easier for the clients to seek assistance in the future from one or more of the team members.
2. Are there warning signs that the collaborative approach won’t work?
Collaborative law is not the answer in every case. The parties must be mature and want to resolve the issues. They also must be willing to provide financial and other information. A client who is hell bent on sabotaging or delaying the divorce as long as possible is not a good candidate for the collaborative process. Neither is the party who has hidden income and assets and has no intention on disclosing financial information to his/her spouse.
I think that most collaborative attorneys will agree with me that the team will face significant, and perhaps insurmountable problems if one party has a borderline personality, is anti-social or narcissistic or in cases where there is spousal abuse. There can also be significant problems if one party is an active alcoholic or drug addict.
We all have experienced high conflict clients. I personally also think that the client who insists on total control or is extremely angry, manipulative or completely unrealistic about the outcome if a case is tried is not a candidate for collaborative law.
It is important for an assessment to be made as to whether the case should proceed collaboratively. This doesn’t have to be done until after the attorneys and clients meet together at the initial meeting. If either attorney or one of the parties thinks there will be a problem they can agree to proceed cooperatively rather than collaboratively.
3. Why should attorneys consider becoming trained as collaborative lawyers?
Attorneys need collaborative training to become skilled in this way of handling divorce cases. Although collaborative practice in New Jersey is relatively recent, significant numbers of attorneys as well as financial and mental health professionals are being trained. The number of parties participating in the collaborative process is increasing. Collaborative law, while hard work, is less stressful than traditional litigation. Working as a team allows attorneys to assist clients in coming up with creative solutions that works for their family.
4. Do collaborative lawyers have a national and/or state organization?
Yes. The national organization is the International Association of Collaborative Professionals [IACP]. In New Jersey there are a number of regional groups that meet regularly. In this area the New Jersey Collaborative Law Group, a group of lawyers, mental health professionals, financial professionals and associate members in other fields was formed in June 2008. We meet monthly. This meeting is an opportunity to meet and talk with other collaborative professionals. We also devote a portion of most meetings to a seminar on various topics.
The members of the NJCLG also meet in smaller groups [PODS]. Our POD meets regularly in Hunterdon County. Most of the members of the New Jersey Collaborative Law Group are from Central New Jersey but there are a few members from North Jersey.
The IACP website is: www.collaborative practice.com. There is significant educational information and forms available to members. This is also a website for potential clients to obtain information about collaborative law.
Our New Jersey Collaborative Law Group website is: www.centraljerseycollaborative law.com. The website is undergoing significant changes. All of the members of the group are listed. There will also be useful information on the site for potential clients about collaborative law.
COLLABORATIVE LAW AS A VIABLE CDR
PRESENTED ON NOVEMBER 30, 2010
Presenters: Kevin M. Kilcommons, Esq. and Patricia Garity Smits, Esq.
“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.”*
*ABRAHAM LINCOLN, NOTES FOR A LAW LECTURE (1850[?]), in THE LIFE AND WRITINGS OF ABRAHAM LINCOLN 327, 328 (Philip Van Doren Stern ed., 1940).
I. THE EVOLUTION OF CDR TO COLLABORATIVE LAW: HISTORIC PERSPECTIVE.
Before any formalized laws, 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-off 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 the accused 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. But we may have come to the point in the evolution of society where the traditional court, and the centuries-old system of adversarial law, is not sufficient to address today’s societal needs. Traditional dispute resolution (invasive, sometimes public, always costly and emotionally damaging) can seem to our clients at times as barbaric as the feudal form of dispute resolution by the sword – and many might again prefer this later option as a time and money saver.
The pressure for change has fueled the Alternative Dispute Resolution/ CDR surge over the past fifteen years. These methods have now been institutionalized in the form of mediation and non-binding arbitration within the Courts, which have become vital tools to reduce calendar backlogs. This change was inevitable and effective. In fact, our judges acknowledge that a single person presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is fact, and is due to the reality that marital breakups are too complicated to resolve –with lasting results-- by just one person. Some issue or issues will sometimes be left unresolved or a party will come away from a judgment so dissatisfied, that years of post-judgment litigation becomes a certainty.
Now, a further evolution of ADR is taking place, and it is collaborative law. Collaborative law as an evolved form of dispute resolution began in the early 1990’s in the Mid-West and has already spread through Canada, Europe and into South West Asia. The collaborative practice is not limited to family law, as it is just as effective in Probate/Trust and Estates, Healthcare, Employment , and Construction. The purpose of this presentation is to introduce the practitioner with the basic elements of collaborative law, its current status and how it can be employed to effectively resolve disputes outside of court.
Adopted from “Trial by Battle,” Kevin M. Kilcommons, 2008 (www.collaborativeinjersey.blogspot.com)
II. COLLABORATIVE LAW FACTS (from the Uniform Collaborative Law Act, July 2009):
Definition:
Collaborative law is a voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter rather than having a ruling imposed upon them by a court or arbitrator. The distinctive feature of collaborative law, as compared to other forms of alternative dispute resolution such as mediation, is that parties are represented by lawyers (“collaborative lawyers”) during negotiations. Collaborative lawyers do not represent the party in court, but only for the purpose of negotiating agreements. The parties agree in advance that their lawyers are disqualified from further representing parties by
appearing before a tribunal if the collaborative law process ends without complete agreement
(“disqualification requirement”). See William H. Schwab, Collaborative Lawyering: A Closer
Look at an Emerging Practice, 4 PEPP. DISP. RESOL. L.J. 351, 358 (2004).
Parties thus retain collaborative lawyers for the limited purpose of acting as advocates and counselors during the negotiation process.
Positional and Problem Solving Negotiations and the Disqualification Requirement:
The goal of collaborative law is to encourage parties to engage in “problem-solving”
rather than “positional” negotiations. See ROGER FISHER ET AL., GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 4-14 (2d ed. 1991). Under a positional approach to negotiation,
the parties see the negotiation process as a contest to be won by one side at the expense of the
other. Id. at 6. Parties to positional negotiations often assume an extreme starting position, and
make small concessions within their predetermined bargaining range usually in response to
concessions made by the other side or threats. Id. If they do not find a meeting point of
agreement between their positions, negotiations break down and litigation ensues. JULIE
MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW
81-84 (2007) [hereinafter MACFARLANE, NEW LAWYER].
In contrast, parties who follow a problem-solving, or what is sometimes referred to as
interest-based, approach to negotiation promoted by collaborative law view a dispute as the
parties’ joint problem that needs to be solved. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 759-60 (1984).
Under this approach, the negotiation process focuses on the parties’ underlying “needs, desires, concerns, and fears” and not only on the parties’ articulated positions. FISHER ET AL., supra, at 40. A problem-solving approach assumes that “[b]ehind opposed positions lie shared and compatible interests, as well as conflicting ones,” and that looking at interests rather than positions is beneficial because “for every interest there usually exist several possible positions that could satisfy it.” Id. at 42. Accordingly, a problem-solving negotiator focuses on “finding creative solutions that maximize the outcome for both sides.” Peter Robinson, Contending with Wolves in Sheep’s Clothing: A Cautiously Cooperative Approach to Mediation Advocacy, 50 BAYLOR L. REV. 963, 965 (1998). Lawyers can and do, of course, encourage clients to engage in problem-solving negotiations without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the disqualification requirement—the enforcement mechanism that parties create by contract to ensure that problem-solving negotiations actually occur. The disqualification requirement enables each party to penalize the other party for unacceptable negotiation behavior if the party who wants to end the collaborative law process is willing to assume the costs of engaging new counsel. “[E]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through settlement.” Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. DISP. RESOL. 131, 133 (2008).
Because of these mutually agreed upon costs of failure to agree, collaborative law is a
modern method of addressing the age old dilemma for parties to a negotiation of assuring that
“one’s negotiating counterpart is and will continue to be a true collaborator rather than a
‘sharpie.’” Ted Schneyer, The Organized Bar and the Collaborative Law Movement: A Study in
Professional Change, 50 ARIZ. L. REV. 289, 327 (2008). It solves the age old problem for
negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other’s intentions and “when the pursuit of self-interest by each leads to a poor
outcome for all” —the famous “Prisoner’s Dilemma” of game theory. ROBERT ALEXROD, THE
EVOLUTION OF COOPERATION 7 (1984).
Multiple Models of Collaborative Law Practice:
To encourage problem-solving negotiations, collaborative lawyers emphasize that no
threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue. See GLOBAL COLLABORATIVE LAW COUNCIL, PARTICIPATION AGREEMENT 3
(2004), available at http://www.collaborativelaw.us/articles/GCLC_Participation_Agreement_With_Addendum.pdf.
Parties in collaborative law generally agree to disclose information voluntarily, without formal
discovery requests, and to supplement responses to information requests previously made with
material changes. See id. at 4. Many models of collaborative law require parties to engage jointly retained mental health and financial professionals in advisory and neutral roles—for example, a divorce coach, appraiser, and child’s representative—rather than as consultants or trial witnesses hired by one party but not the other. See John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L.J. 1315, 1321 n.21 (2003) [hereinafter Lande, Possibilities for Collaborative Law]; FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK: HELPING FAMILIES WITHOUT
GOING TO COURT 106-07 (2009). Sometimes, collaborative law participation agreements require
that negotiations take place in meetings in which parties are the primary negotiators and their
lawyers encourage focusing on underlying interests, sharing information, and brainstorming
solutions to problems. GLOBAL COLLABORATIVE LAW COUNCIL, supra, at 2-3. Typically, in order
to promote problem solving negotiations, collaborative law participation agreements provide that communications during the collaborative law process are confidential and cannot be introduced as evidence in court. See id. at 4-5; see also N.Y. Association of Collaborative Professionals, Participation Agreement, http://collaborativelawny.com/participation_agreement.php (last visited Oct. 23, 2009).
Collaborative Law Compared to Mediation:
Mediation and collaborative law are both valuable alternative dispute resolution
processes that share common characteristics. They do have differences that might make one
process more or less attractive to parties.
Both collaborative law and mediation offer parties the benefits of a process to promote
agreement through private, confidential negotiations, the promise of cost reduction, and the
potential for better relationships. Both mediation and collaborative law encourage voluntary
disclosure and an ethic of fair dealing between parties. Parties in both mediation and
collaborative law are likely to experience greater voice in the process of settlement than in a
judicial resolution (self-determination) and are more likely to be satisfied with the process as
compared to litigation. See Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on
a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885, 191 (1998).
Mediation and collaborative law do, however, have differences which might make
collaborative law more or less attractive to some parties as a dispute resolution option. A neutral is not present during a collaborative law process negotiation sessions unless agreed to by the parties, while mediation sessions are facilitated by a neutral third party. MODEL STANDARDS OF CONDUCT FOR MEDIATORS pmbl. (2005). As will be discussed infra, parties can participate in mediation without counsel but cannot do so in collaborative law. In many states parties do not have the protection of mediators being a licensed and regulated profession and bound by its rules of professional responsibility. Collaborative lawyers, in contrast, are licensed and regulated members of the legal profession. Mediators, as neutrals, cannot give candid legal advice to a party while collaborative lawyers can. Mediators, as neutrals, are also constrained in redressing imbalances in the knowledge and sophistication of parties. See, e.g., MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard II(B) (2005) (“A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”); RULES OF THE CHIEF ADMIN. JUDGE, 30 N.Y. Reg. 93 (July 30, 2008) (detailing the neutrality requirement for mediators in New York); MODEL STANDARDS OF PRACTICE FOR FAMILY & DIVORCE MEDIATION Standard IV (Symposium on Standards of Practice 2000) (“A family mediator shall conduct the mediation process in an impartial manner.”). Despite their limited purpose of representation in negotiating a resolution of a dispute, collaborative lawyers are not neutrals but are advocates for their clients.
The Origin and Growth of Collaborative Law:
The concept of collaborative law was first described by Minnesota lawyer Stu Webb
approximately eighteen years ago in the context of representation in divorce proceedings, the
leading subject area for collaborative law practice today. Stu Webb, Collaborative Law: An
Alternative for Attorneys Suffering ‘Family Law Burnout,’ 13 MATRIMONIAL STRATEGIST, July
2000, at 7, 7. Since then, collaborative law has matured and emerged as a viable option on the
continuum of choices of dispute resolution processes available to parties to attempt to resolve a matter.
Examples of its growth and development include:
• Roughly 22,000 lawyers worldwide have been trained in collaborative law. Telephone
Interview by Ashley Lorance with Talia Katz, Executive Dir., Int’l Acad. of
Collaborative Prof’ls (Feb. 17, 2009) (on file with reporter) [hereinafter Interview with
Talia Katz]. See Christopher M. Fairman, A Proposed Model Rule for Collaborative Law,
21 OHIO ST. J. ON DISP. RESOL. 73, 83 (2005) (noting that there are “more than 4,500
lawyers trained in collaborative law” nationwide (citing Jane Gross, Amiable Unhitching,
with a Prod, N.Y. TIMES, May 20, 2004, at F1)).
• Collaborative law has been used to resolve thousands of cases in the United States,
Canada, and elsewhere. Christopher M. Fairman, Growing Pains: Changes in
Collaborative Law and the Challenge of Legal Ethics, 30 CAMPBELL L. REV. 237, 239
(2008) [hereinafter Fairman, Growing Pains].
• The International Association of Collaborative Professionals (IACP), the umbrella
organization for collaborative lawyers, has more than 3,600 lawyer members. Interview
with Talia Katz, supra. (https://www.collaborativepractice.com/)
• Collaborative law practice associations and groups have been organized in virtually every
state in the nation and in several foreign jurisdictions. See International Academy of
Collaborative Professionals,
http://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups (last visited Oct.
24, 2009).
• A number of states have enacted statutes of varying length and complexity which
recognize and authorize collaborative law. See, e.g., CAL. FAM. CODE § 2013 (West 2004
& Supp. 2009) (defining “collaborative law process” and authorizing parties to agree in
writing to use of the process); N.C. GEN. STAT. §§ 50-70 to -79 (2007) (authorizing the
use of collaborative law as “an alternative to judicial disposition of issues arising in a
civil action”); TEX. FAM. CODE ANN. § 6.603 (Vernon 2006) (governing collaborative law
agreements for divorcing parties); TEX. FAM. CODE ANN. § 153.0072 (Vernon 2008)
(governing collaborative law agreements for parent-child relationship).
• A number of courts have taken similar action through enactment of court rules. See, e.g.,
MINN. R. 111.05, 304.05 (2008) (defining collaborative law and detailing scheduling and
application of additional ADR requirements); CONTRA COSTA COUNTY, CAL., LOCAL CT.
R. 12.5 (“Contra Costa County Superior Court strongly supports the use of the
collaborative law process . . . .”); L.A. COUNTY, CAL., LOCAL CT. R. 14.26 (detaining the
designation, contested matters, and termination of collaborative law cases); S.F. COUNTY,
CAL., LOCAL CT. R. 11.17(B), (E) (including collaborative law in its definition of ADL
procedures and specifying the requirements for its use); SONOMA COUNTY, CAL., LOCAL
CT. R. 9.26 (“Sonoma County Superior Court strongly supports the use of the
collaborative law process . . . .”); LA. DIST. CT. R. tit. IV, ch. 39, R.39.0 (defining
collaborative divorce procedures in Louisiana’s twenty-fourth judicial district court);
UTAH ADMIN. CODE r. 4-510 (2009) (defining collaborative law and outlining the
responsibilities of ADL providers).
• The first empirical research on collaborative law found generally high levels of client and
lawyer satisfaction with the process and that negotiation under collaborative law
participation agreements is more problem solving and interest based than those in the
more traditional adversarial framework. [See infra for a review of reported New Jersey collaborative cases.] See JULIE MACFARLANE, CAN. DEP’T OF JUSTICE, THE EMERGING PHENOMENON OF COLLABORATIVE FAMILY LAW (CFL): A QUALITATIVE STUDY OF CFL CASES 57, 77-78 (2005) available at http://www.justice.gc.ca/eng/pi/fcyfea/ lib-bib/rep-rap/2005/2005_1/pdf/2005_1.pdf [hereinafter MACFARLANE, EMERGING PHENOMENON]; see also MARK SEFTON, COLLABORATIVE FAMILY LAW: A REPORT FOR RESOLUTION 43-48(2009) (similar findings in first empirical evaluation of cases in collaborative law process in England and Wales); Julie Macfarlane, Experiences of
Collaborative Law: Preliminary Results from the Collaborative Lawyering Research
Project, 2004 J. DISP. RESOL. 179, 200 (2004). It found no evidence that “weaker”
parties fared worse in collaborative law than in adversarial based negotiations.
MACFARLANE, EMERGING PHENOMENON supra, at 57, 77.
• Former Chief Judge Judith S. Kaye of New York established the first court based
Collaborative Family Law Center in the nation in New York City. JUDITH S. KAYE, N.Y.
STATE UNIFIED COURT SYS., THE STATE OF THE JUDICIARY 11 (2007). In announcing the
Center, Chief Judge Kaye stated: “[w]e anticipate that spouses who choose this approach
will find that the financial and emotional cost of divorce is reduced for everyone
involved—surely a step in the right direction.” Id. at 12. The Center began operations on
6 September 1, 2009. Press Release, Ann Pfau, Chief Admin. Judge, N.Y. State Unified
Family Court Sys., Collaborative Family Law Center to Make Divorce Process Easier
New Center to Reduce Stress, Expense and Time Involved in Matrimonial Cases (Sept. 1,
2009), available at http://www.courts.state.ny.us/press/pr2009_15.shtml.
• The American Bar Association Dispute Resolution Section has organized a Committee
on Collaborative Law. American Bar Association, Collaborative Law Committee,
http://www.abanet.org/dch/committee.cfm?com=DR035000 (last visited Oct. 24, 2009).
The Collaborative Law Committee has an active Ethics Subcommittee engaged in the
codification of the standards of practice for collaborative lawyers. SUMMARY OF ETHICS
RULES GOVERNING COLLABORATIVE LAW intro. (Discussion Draft 2008) (discussing the
ways in which “[c]ollaborative [p]ractice is consistent with the rules of ethics for
lawyers” and is an important method for achieving fair settlements).
• Collaborative law is developing worldwide. Australia, Austria, Canada, the Czech
Republic, France, Germany, Ireland, Israel, New Zealand, Switzerland, the United
Kingdom, and Uganda all report collaborative law activity. Robert Miller, How We Can
All Get Along, DALLAS MORNING NEWS, Sept. 3, 2008, at 2D. For example:
o Collaborative law has grown rapidly in Canada since its introduction in 2000—
from 75 lawyers trained in collaborative practice to more than 2,800 in 2009.
Susan Pigg, Collaboration, Not Litigation: Many Divorcing Couples Are Sitting
Down Together, Along with Their Lawyers, To Hammer Out Agreements,
TORONTO STAR, Jan. 28, 2009, at L01.
• Many professionals from other disciplines, especially financial planning and psychology,
have been trained to participate in collaborative law. See Gary L. Voegele et al.,
Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better
Outcomes, 33 WM. MITCHELL L. REV. 971, 976 (2007) (citing Pauline H. Tesler & Peggy
Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your
Family, Resolve Legal Issues, and Move on with Your Life 41-50 (2006)).\
· Since the Uniform Law was issued, the list of countries in which collaborative law is practiced has grown, including the following:
Australia
Austria
Bermuda
Canada
Czech Republic
United Kingdom
France
Germany
Ireland
Israel
Italy
Netherlands
Switzerland
Collaborative Law’s Benefits to Parties, their Children and the Public:
Experience to date indicates that collaborative law is a valuable dispute resolution for
those parties who choose to participate in it with informed consent. Like other alternative dispute resolution processes, collaborative law reduces the costs of dispute resolution for parties and emphasizes the importance of party self-determination. Collaborative law also has significant benefits to the public by saving scarce judicial resources, in promoting peaceful, durable resolution of disputes and a positive view of the civil justice system by participants and the general public.
The needs of children are particularly implicated in divorce cases, as children exposed to high levels of inter-parental conflict “are at [a higher] risk for developing a range of emotional and behavioral problems, both during childhood and later in life.” John H. Grych, Interparental Conflict as a Risk Factor for Child Maladjustment: Implications for the Development of Prevention Programs, 43 FAM. CT. REV. 97, 97 (2005); see also INTERPARENTAL CONFLICT AND CHILD DEVELOPMENT: THEORY, RESEARCH, AND APPLICATIONS (John H. Grych & Frank D. Fincham eds., 2001); Joan B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 39 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 963-64 (2000).
III. FAQs (from the International Academy of Collaborative Professionals Web Site)
How does Collaborative Practice actually work step by step?
When you decide on a Collaborative Practice divorce, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your lawyers. Additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final divorce agreement.
What is a Collaborative Team?
A Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and your Collaborative lawyers. In addition to your Collaborative lawyers, you can choose to include a neutral financial professional, divorce coaches, a child specialist or other specialists you and your spouse believe would be helpful. Your "Collaborative team" will guide and support you as problem-solvers, not as adversaries.
Is Collaborative Practice a faster way to get a divorce?
Your situation determines how quickly your divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving—instead of blame and grievances—there’s an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce.
How does Collaborative Practice focus on the future?
Divorce is both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family’s goals for a smoother transition to the next stage of your lives.
http://www.collaborativepractice.com/
IV. What the Clients have said about their Collaborative Divorce (from IACP Client Experience Survey, 2007)
(Study results based upon 84 responses representing 71 cases)
Who are the Survey Respondents and how do they learn about Collaborative Practice?
Sixty percent (60%) of the 84 clients responding to Client Experience Surveys as of August 24, 2009, had been married over 15 years and 84% of them had been married 11 years or longer. Eighty-five percent (85%) of both clients in a proceeding were in their first marriage. (Approximately an equal number of males and females responded.) Most had worked with a mental health professional before entering the Collaborative Practice process; 62% of the clients had been in marital or couples counseling. Yet, only 11% of them heard first about the process from a mental health professional; an equal number learned about it from the person who served as their collaborative lawyer. Twenty-six percent (26%) of clients heard about the process from their spouse, 18% learned about the process from a friend, and 18% by use of the internet. The first collaborative professional with whom 91% of the clients met was one of the collaborative lawyers who served on the case; 85% met first with their own collaborative lawyer.
What other processes did the clients consider before choosing Collaborative Practice?
Eighty-five percent (85%) of the clients were informed about the traditional court process/litigation as an option prior to using the Collaborative process, but only 29% considered using the option. Fifty-nine percent (59%) of clients were informed of mediation as a process option, but only 18% considered using mediation. The option most often considered was "doing it yourself," considered by 46% of the clients, with an additional 48% of clients having been informed of the option.
Why did the clients choose Collaborative Practice over the traditional litigation process?
The most commonly cited reasons were their expectations that the Collaborative Practice process would yield them a better outcome, would better focus on what was most important to them and would be a less confrontational, adversarial process. They also expected it to be more respectful, less stressful, and provide more control to them over the outcome.
How satisfied were the clients with Collaborative Practice?
Seventy-eight percent (78%) were somewhat satisfied or extremely satisfied with Collaborative Practice overall, 77% were somewhat or extremely satisfied with the process, and 72% were somewhat or extremely satisfied with the outcome. Eighty percent (80%) would probably or definitely recommend the process to others.
What did the clients think about the fees?
Eighty-three percent (83%) thought their lawyer's fees were somewhat reasonable or very reasonable. They were not asked to rate the other participant's legal fees, because they would not have enough information to evaluate them. Of those whose cases involved another discipline (40% involved one or more mental health professionals and 55% involved a financial professional), 80% with mental health professional(s) rated those fees as somewhat or very reasonable, and 76% with a financial professional rated their fees as somewhat or very reasonable.
What was most satisfying about the services rendered by the professionals?
The client's lawyers, the mental health professional(s), and financial professional received high ratings (more than somewhat satisfied) for their listening and maintaining respect for the clients and the client's viewpoint. Additionally, the highest ratings by discipline were: the client's lawyer, explaining matters so that the client understood what was happening at each stage of the case; the financial professional, maintaining neutrality, when serving as a neutral; and the mental health professional, managing communication between all team members.
http://www.collaborativepractice.com/_t.asp?T=Survey
V. QUESTIONS LAWYERS HAVE ABOUT COLLABORATIVE LAW
1. Why will most clients benefit from collaborative law?
Most attorneys handling divorce, custody and other family matters quickly realize that the law doesn’t deal with relationships. Traditional litigation does not help clients make the necessary transition to post-judgment relationships for them and for their children. Often there are issues that are not resolved as part of a final settlement. We resolve what needs to be resolved but don’t deal with issues that the parties will be faced with in the future. Moreover, the process doesn’t provide the parties with the skills necessary to negotiate in the future. Any lawyer who has tried a divorce case to conclusion realizes that our trial judges decide issues that need to be decided now and do not decide issues that the parties will be faced with in the future. This can create needless litigation in the future.
The process of handling a divorce collaboratively encourages parties to focus on relationships as well as the substantive issues. The team approach to dealing with the case permits the lawyers to deal with legal issues and others with expertise in financial matters and mental health to assist in these areas.
Having a financial expert on the team enables the parties and lawyers to obtain assistance from a person with financial expertise. Mental health professions acting as coaches assist clients in learning how to deal with child related issues. For example, in traditional litigation we focus on a parenting time schedule but not how to deal with parenting time in the future when the children’s needs may change. The mental health professionals are not treating or assessing the clients. They are working with them to achieve resolutions that will benefit the entire family. Involving mental health experts as team members also allows the lawyers to focus on legal issues without ignoring important and critical family issues. The parties can deal with child related issues with someone trained to assist in these areas. The mental health coach can also help people deal with the inevitable conflicts that arise in more constructive ways.
Lawyers also realize is that it is not possible even in the most comprehensive settlements and Agreements [Property Settlement Agreement/ Marital Settlement Agreement] to anticipate all the issues that can arise post-judgment. The team approach in a collaborative case makes it easier for the clients to seek assistance in the future from one or more of the team members.
2. Are there warning signs that the collaborative approach won’t work?
Collaborative law is not the answer in every case. The parties must be mature and want to resolve the issues. They also must be willing to provide financial and other information. A client who is hell bent on sabotaging or delaying the divorce as long as possible is not a good candidate for the collaborative process. Neither is the party who has hidden income and assets and has no intention on disclosing financial information to his/her spouse.
I think that most collaborative attorneys will agree with me that the team will face significant, and perhaps insurmountable problems if one party has a borderline personality, is anti-social or narcissistic or in cases where there is spousal abuse. There can also be significant problems if one party is an active alcoholic or drug addict.
We all have experienced high conflict clients. I personally also think that the client who insists on total control or is extremely angry, manipulative or completely unrealistic about the outcome if a case is tried is not a candidate for collaborative law.
It is important for an assessment to be made as to whether the case should proceed collaboratively. This doesn’t have to be done until after the attorneys and clients meet together at the initial meeting. If either attorney or one of the parties thinks there will be a problem they can agree to proceed cooperatively rather than collaboratively.
3. Why should attorneys consider becoming trained as collaborative lawyers?
Attorneys need collaborative training to become skilled in this way of handling divorce cases. Although collaborative practice in New Jersey is relatively recent, significant numbers of attorneys as well as financial and mental health professionals are being trained. The number of parties participating in the collaborative process is increasing. Collaborative law, while hard work, is less stressful than traditional litigation. Working as a team allows attorneys to assist clients in coming up with creative solutions that works for their family.
4. Do collaborative lawyers have a national and/or state organization?
Yes. The national organization is the International Association of Collaborative Professionals [IACP]. In New Jersey there are a number of regional groups that meet regularly. In this area the New Jersey Collaborative Law Group, a group of lawyers, mental health professionals, financial professionals and associate members in other fields was formed in June 2008. We meet monthly. This meeting is an opportunity to meet and talk with other collaborative professionals. We also devote a portion of most meetings to a seminar on various topics.
The members of the NJCLG also meet in smaller groups [PODS]. Our POD meets regularly in Hunterdon County. Most of the members of the New Jersey Collaborative Law Group are from Central New Jersey but there are a few members from North Jersey.
The IACP website is: www.collaborative practice.com. There is significant educational information and forms available to members. This is also a website for potential clients to obtain information about collaborative law.
Our New Jersey Collaborative Law Group website is: www.centraljerseycollaborative law.com. The website is undergoing significant changes. All of the members of the group are listed. There will also be useful information on the site for potential clients about collaborative law.
©Kilcommons 2010
No comments:
Post a Comment