Collaborative Family Law Practice and You

Have you considered making your matrimonial practice collaborative? That's the system currently gaining favor around the country whereby divorcing couples seek to resolve issues with the aid of collaborative attorneys who take part in discussions involving both divorcing parties and their attorneys. The goal is to bring all parties to a solution that is as mutually satisfying as possible with as little friction as possible. The collaborative method came into being in 1990 when Minnesota attorney Stuart Webb and some of his colleagues formed a group they called the Collaborative Law Institute. Since then, a number of other regional groups have formed around the United States.

How is collaborative law different from mediation? The main difference is that in mediation, the divorcing parties represent themselves, discussing issues with the help of the mediator. And while the mediator may give information about the law to the parties, he or she cannot offer either of them legal advice. This system may work well for some divorcing couples, but it may not be for everyone. For instance, the husband and wife may have different levels of knowledge or one might simply be more assertive than the other, rendering the balance of power uneven. For them ' or at least for the disadvantaged spouse in this equation ' mediation may not be the best answer.

Collaborative Divorce

Collaborative divorce is different from mediation because each party is represented by his or her own attorney. Unlike the attorneys handling most divorces, however, collaborative attorneys agree in writing before entering negotiations to work toward equitable solutions without going to court, or even threatening to do so. If they are unable to help the parties come to agreement, they must withdraw from the representation. The reasoning behind this requirement is that if all parties have agreed not to litigate, they will work toward the goal of settlement and will not have an incentive to do otherwise.

Amy Carron Day, an attorney whose offices are located in New York City, has been formally practicing collaborative law for 1 year, but notes that prior to this, she handled a number of representation cases 'that arose out of mediations that didn't' work out (with other mediators). The process felt just like 'collaborative law' because, in general, both attorneys were also trained and working as mediators.' So the concepts of collaborative law may not be all that far removed from mediation concepts that many attorneys may already be practicing. Day points out, however that her collaborative law group requires all members to have both mediation and collaborative law training. 'It isn't just about agreeing not to litigate,' she says. 'It is about problem solving in a very different way. Documents are exchanged informally and almost all negotiations take place in four-way meetings where mediation training feels really essential in keeping everyone talking openly ' not just the two attorneys to each other. It is common in collaborative law that each attorney speaks directly with both clients and really tries to get to the underlying needs of the parties.'

Couples who choose a collaborative divorce may do so for various reasons. It may be because they want to conduct their divorce in a civilized manner, often, because they have children. The collaborative process, because it engenders fewer disputes, can spare children the emotional consequences of being caught in the middle of an ugly litigated divorce and can make it easier for the couple to work together to meet the needs of the children after the divorce is finalized. Couples may also choose this method because they want to make their own decisions, not hand their fates over to a judge.

How It Works

The process of collaborative divorce begins with a written agreement by the parties and their attorneys. The agreement usually contains promises to work toward resolution without resort to litigation, to voluntarily provide all pertinent financial information to the other side, to avoid making threats concerning financial arrangements and parenting issues, and to hire joint neutral experts to make evaluations, if necessary. If the parties find that they cannot reach agreement through the collaborative process, they also agree to hire new attorneys to handle the litigation. Any experts they've hired in the process of the collaboration may not be called to testify in an adversarial proceeding, if such becomes necessary.

Because the process does not involve pleadings, motions and counter motions, it tends to keep the accusatory atmosphere of the litigated divorce to a minimum. Settlements come about through open discussions of the issues by spouses and their attorneys, rather than in the traditional manner in which the attorneys do most of the talking, then discuss their views with their clients outside the hearing of the other spouse and his or her attorney. One of the main goals of these methods is the formation of an atmosphere of trust that will enable the couple to see the issues more clearly, without added anger or fear clouding their judgments.

Drawbacks

However, there can be drawbacks to the collaborative method. For one, because the divorcing couple is in the same room with the attorneys ' freely talking about their shared, presumably unhappy situation ' the atmosphere can easily become charged with emotion. Many attorneys may be uncomfortable with the expressions of hurt and anger that may ensue. For the attorney who prefers a businesslike decorum in his or her practice, collaborative divorce may not be suitable.

For the divorcing couple, there is the risk that a failed attempt at collaborative divorce will drive up costs. This can come about because the attorneys who handled the collaboration efforts are forbidden by the parties' agreement from continuing to represent their clients once the effort fails. Thus, new attorneys must be hired and will have to put in billable hours getting up to speed on the issues of the case. Likewise, experts hired for the collaborative divorce cannot be called to testify in the litigated divorce, so new experts will have to be hired and paid for conducting duplicate investigations and preparing new reports.

The emotional toll on the divorcing parties should the collaboration fail should also be explained to them before they decide to go this route. Their relationships with their attorneys will be cut off if things don't work out. Then they will have to bare their souls to a whole new set of attorneys and the experts they employ. And starting over from scratch when the process has already progressed a good distance can be very demoralizing.

Becoming a Member

The Texas state legislature has promulgated rules governing the practice of collaborative law, but New York and the other states have not yet done this. Therefore, New York attorneys who want to practice this form of law might consider joining a group of like-minded professionals that works to set standards and facilitate the practice of collaborative divorce. Several such groups have been formed in New York, including The New York Collaborative Law Group, based in the New York metropolitan area, and Collaborative Family Lawyers of the Hudson Valley.

In order to become a member of one of the groups, attorneys must take part in a two-part training process. First, if they have not already had mediation training, they must take a single mediation training session of 35-40 hours. Then, they must attend a 2- or 3-day collaborative-law training course. Such courses are held at different locations around the United States.

Once a member, the collaborative divorce attorney is required to attend a certain number of group meetings each year. (For instance, The New York Collaborative Law Group requires its members to attend at least six group meetings each year.) These meetings allow the members to become comfortable with one another, making working together on behalf of their clients an easier process. At the meetings, the group discuses issues that have come up in their practices, such as how to balance the interests of their own clients with the ideals espoused by the discipline.

Attorney Adam Berner of New York's Mediation Law & Conflict Resolution Offices is a member of The New York Collaborative Law Group, and has been a collaborative divorce attorney for the past 8 years. He notes that although some attorneys in the group practice both collaborative and conventional divorce law, he does not on principle handle litigated divorces. When asked if attorneys who are not part of the group might take part in a collaborative divorce, Berner said, 'If a nonmember is representing the other side and interested in collaborating in a divorce negotiation ' I would not say no. In fact, if they did a good job, I would likely invite them to join the group.' Still, he notes that 'the difference between [the noncollaborative-divorce trained attorney's] understanding of 'collaborative' and what we are talking about can be considerable. To a significant extent, this relates to a difference in paradigm. Is the 'other' side on the other side as an opponent or as a partner?'

Attorneys who are not members of a collaborative law group can take part in such divorces, provided they are willing to agree to withdraw if the process fails ' something many attorneys are uncomfortable with doing. When the situation arises where an attorney agrees to work collaboratively but will not agree to withdraw if negotiations fail, the New York Collaborative Law Group permits its member attorneys take on the case as a quasi-collaborative one, without the signed agreement. If negotiations fall through, they may then represent their client in court, if they so choose.

As mentioned above, some attorneys take part in both collaborative and conventional divorces. For instance, attorney Jill Bauer of Garden City, NY, who has handled collaborative divorces for 1 year, practices both types. She does not pick and choose those to whom she will propose the idea based on an assessment of the couple's relationship or situation, but offers the option of collaborative divorce to all her clients. This is practice of most attorneys who handle both types of cases.

As an attorney, the collaborative method may be something you would like to consider practicing if the adversarial tone of many divorces you have handled has left you with a bad taste in your mouth. The attorney's role isn't reduced, only changed. Of course, the method's success will depend on the particular couple in question, their ability to work toward compromise and their (and their attorneys') commitment to seeking the best outcome for all concerned.

(see box below)

For further information on collaborative family practice, contact one of the following:

Association of Collaborative Family Law Attorneys (Rochester)

Sue Brunsting, 585-546-6448.

Collaborative Family Lawyers of the Hudson Valley

845-562-0500.

Finger Lakes Collaborative Law Association

Wendy Gould, 607-776-4164.

New York Collaborative Law Group (New York City)

212-682-0888; www.collaborativelawny.com.

Have you considered making your matrimonial practice collaborative? That's the system currently gaining favor around the country whereby divorcing couples seek to resolve issues with the aid of collaborative attorneys who take part in discussions involving both divorcing parties and their attorneys. The goal is to bring all parties to a solution that is as mutually satisfying as possible with as little friction as possible. The collaborative method came into being in 1990 when Minnesota attorney Stuart Webb and some of his colleagues formed a group they called the Collaborative Law Institute. Since then, a number of other regional groups have formed around the United States.

How is collaborative law different from mediation? The main difference is that in mediation, the divorcing parties represent themselves, discussing issues with the help of the mediator. And while the mediator may give information about the law to the parties, he or she cannot offer either of them legal advice. This system may work well for some divorcing couples, but it may not be for everyone. For instance, the husband and wife may have different levels of knowledge or one might simply be more assertive than the other, rendering the balance of power uneven. For them ' or at least for the disadvantaged spouse in this equation ' mediation may not be the best answer.

Collaborative Divorce

Collaborative divorce is different from mediation because each party is represented by his or her own attorney. Unlike the attorneys handling most divorces, however, collaborative attorneys agree in writing before entering negotiations to work toward equitable solutions without going to court, or even threatening to do so. If they are unable to help the parties come to agreement, they must withdraw from the representation. The reasoning behind this requirement is that if all parties have agreed not to litigate, they will work toward the goal of settlement and will not have an incentive to do otherwise.

Amy Carron Day, an attorney whose offices are located in New York City, has been formally practicing collaborative law for 1 year, but notes that prior to this, she handled a number of representation cases 'that arose out of mediations that didn't' work out (with other mediators). The process felt just like 'collaborative law' because, in general, both attorneys were also trained and working as mediators.' So the concepts of collaborative law may not be all that far removed from mediation concepts that many attorneys may already be practicing. Day points out, however that her collaborative law group requires all members to have both mediation and collaborative law training. 'It isn't just about agreeing not to litigate,' she says. 'It is about problem solving in a very different way. Documents are exchanged informally and almost all negotiations take place in four-way meetings where mediation training feels really essential in keeping everyone talking openly ' not just the two attorneys to each other. It is common in collaborative law that each attorney speaks directly with both clients and really tries to get to the underlying needs of the parties.'

Couples who choose a collaborative divorce may do so for various reasons. It may be because they want to conduct their divorce in a civilized manner, often, because they have children. The collaborative process, because it engenders fewer disputes, can spare children the emotional consequences of being caught in the middle of an ugly litigated divorce and can make it easier for the couple to work together to meet the needs of the children after the divorce is finalized. Couples may also choose this method because they want to make their own decisions, not hand their fates over to a judge.

How It Works

The process of collaborative divorce begins with a written agreement by the parties and their attorneys. The agreement usually contains promises to work toward resolution without resort to litigation, to voluntarily provide all pertinent financial information to the other side, to avoid making threats concerning financial arrangements and parenting issues, and to hire joint neutral experts to make evaluations, if necessary. If the parties find that they cannot reach agreement through the collaborative process, they also agree to hire new attorneys to handle the litigation. Any experts they've hired in the process of the collaboration may not be called to testify in an adversarial proceeding, if such becomes necessary.

Because the process does not involve pleadings, motions and counter motions, it tends to keep the accusatory atmosphere of the litigated divorce to a minimum. Settlements come about through open discussions of the issues by spouses and their attorneys, rather than in the traditional manner in which the attorneys do most of the talking, then discuss their views with their clients outside the hearing of the other spouse and his or her attorney. One of the main goals of these methods is the formation of an atmosphere of trust that will enable the couple to see the issues more clearly, without added anger or fear clouding their judgments.

Drawbacks

However, there can be drawbacks to the collaborative method. For one, because the divorcing couple is in the same room with the attorneys ' freely talking about their shared, presumably unhappy situation ' the atmosphere can easily become charged with emotion. Many attorneys may be uncomfortable with the expressions of hurt and anger that may ensue. For the attorney who prefers a businesslike decorum in his or her practice, collaborative divorce may not be suitable.

For the divorcing couple, there is the risk that a failed attempt at collaborative divorce will drive up costs. This can come about because the attorneys who handled the collaboration efforts are forbidden by the parties' agreement from continuing to represent their clients once the effort fails. Thus, new attorneys must be hired and will have to put in billable hours getting up to speed on the issues of the case. Likewise, experts hired for the collaborative divorce cannot be called to testify in the litigated divorce, so new experts will have to be hired and paid for conducting duplicate investigations and preparing new reports.

The emotional toll on the divorcing parties should the collaboration fail should also be explained to them before they decide to go this route. Their relationships with their attorneys will be cut off if things don't work out. Then they will have to bare their souls to a whole new set of attorneys and the experts they employ. And starting over from scratch when the process has already progressed a good distance can be very demoralizing.

Becoming a Member

The Texas state legislature has promulgated rules governing the practice of collaborative law, but New York and the other states have not yet done this. Therefore, New York attorneys who want to practice this form of law might consider joining a group of like-minded professionals that works to set standards and facilitate the practice of collaborative divorce. Several such groups have been formed in New York, including The New York Collaborative Law Group, based in the New York metropolitan area, and Collaborative Family Lawyers of the Hudson Valley.

In order to become a member of one of the groups, attorneys must take part in a two-part training process. First, if they have not already had mediation training, they must take a single mediation training session of 35-40 hours. Then, they must attend a 2- or 3-day collaborative-law training course. Such courses are held at different locations around the United States.

Once a member, the collaborative divorce attorney is required to attend a certain number of group meetings each year. (For instance, The New York Collaborative Law Group requires its members to attend at least six group meetings each year.) These meetings allow the members to become comfortable with one another, making working together on behalf of their clients an easier process. At the meetings, the group discuses issues that have come up in their practices, such as how to balance the interests of their own clients with the ideals espoused by the discipline.

Attorney Adam Berner of New York's Mediation Law & Conflict Resolution Offices is a member of The New York Collaborative Law Group, and has been a collaborative divorce attorney for the past 8 years. He notes that although some attorneys in the group practice both collaborative and conventional divorce law, he does not on principle handle litigated divorces. When asked if attorneys who are not part of the group might take part in a collaborative divorce, Berner said, 'If a nonmember is representing the other side and interested in collaborating in a divorce negotiation ' I would not say no. In fact, if they did a good job, I would likely invite them to join the group.' Still, he notes that 'the difference between [the noncollaborative-divorce trained attorney's] understanding of 'collaborative' and what we are talking about can be considerable. To a significant extent, this relates to a difference in paradigm. Is the 'other' side on the other side as an opponent or as a partner?'

Attorneys who are not members of a collaborative law group can take part in such divorces, provided they are willing to agree to withdraw if the process fails ' something many attorneys are uncomfortable with doing. When the situation arises where an attorney agrees to work collaboratively but will not agree to withdraw if negotiations fail, the New York Collaborative Law Group permits its member attorneys take on the case as a quasi-collaborative one, without the signed agreement. If negotiations fall through, they may then represent their client in court, if they so choose.

As mentioned above, some attorneys take part in both collaborative and conventional divorces. For instance, attorney Jill Bauer of Garden City, NY, who has handled collaborative divorces for 1 year, practices both types. She does not pick and choose those to whom she will propose the idea based on an assessment of the couple's relationship or situation, but offers the option of collaborative divorce to all her clients. This is practice of most attorneys who handle both types of cases.

As an attorney, the collaborative method may be something you would like to consider practicing if the adversarial tone of many divorces you have handled has left you with a bad taste in your mouth. The attorney's role isn't reduced, only changed. Of course, the method's success will depend on the particular couple in question, their ability to work toward compromise and their (and their attorneys') commitment to seeking the best outcome for all concerned.

(see box below)

For further information on collaborative family practice, contact one of the following:

Association of Collaborative Family Law Attorneys (Rochester)

Sue Brunsting, 585-546-6448.

Collaborative Family Lawyers of the Hudson Valley

845-562-0500.

Finger Lakes Collaborative Law Association

Wendy Gould, 607-776-4164.

New York Collaborative Law Group (New York City)

212-682-0888; www.collaborativelawny.com.