The litigation system that we inherited from common law England is not well suited to resolving family disputes, especially divorces.
Experienced lawyers understand that litigation is not the preferred route to help a family transition to living apart. Fully contested litigations leave both spouses bloodied and have a permanently negative effect on children.
There are no real winners in matrimonial cases resolved through litigation.
Seeking a better approach, matrimonial attorneys turned to mediation, which solves many of the problems created by the litigation process, but may have inherent weaknesses. Some mediated agreements are later set aside in court because financial disclosure was lacking or because one or even both parties lacked legal representation. Now, couples have the option of using the Collaborative Divorce process, which combines the benefits of mediation and litigation into a single fair process. In Collaborative Divorce, the couple and their lawyers expressly agree not to go to court and with the assistance of an interdisciplinary team resolve their divorce respectfully.
THE COLLABORATIVE PARADIGM
The collaborataive divorce process affords both the wife and husband independent legal representation. When needed the children can have a child specialist representing their interest.
Collaborative Law is ideally a multi-disciplinary procedure in which each spouse and his or her own attorney contractually agree, in writing, to resolve all issues on an amicable basis without resorting to litigation, except to obtain court approval of the settlement agreement and to sign necessary orders or judgments to effectuate the agreement. The Collaborative lawyers cannot serve as litigation counsel. Thus, all participants in the Collaborative Process, couples and lawyers alike, are motivated to resolve the dispute without judicial intervention.
The Collaborative Process does not work for all couples. Each spouse must agree to total financial transparency during the Collaborative Process. The standard of honesty is so high that a lawyer must either terminate the collaborative process or withdraw if his or her client is being deceitful. The process relies on honesty, cooperation and integrity. For some couples, this standard is as unreasonable in divorce as it was in marriage. For other couples, and their children, Collaborative Law provides a multi- disciplinary model that protects the dignity and long term interest of all family members.
THE COLLABORATIVE PROCESS
The Collaborative Divorce process starts by selecting collaboratively trained lawyers.
On Long Island, this training is provided by the New York Association of Collaborative Professionals. Only members of this organization have been trained in the Collaborative Process. Untrained lawyers frequently call what they do “collaborative,” but in fact it amounts to “smiling litigation.” Collaborative Practice requires lawyers who have extensive training and experience. In Nassau County, a group of independent professionals trained in Collaborative Process have formed a practice group called Collaborative Divorce Resolutions. Once you and your spouse have found collaboratively trained lawyers, the lawyers contact each other, suggest the best team to use to resolve the case and and arrange the topics to be reviewed at collaborative meetings.
A major goal of the first meeting is the resolution of the collaborative participation contract, which is the heart of the process. The collaborative participation contract provides that each lawyer must withdrawn from representation if the process breaks down and litigation becomes necessary. There are obviously serious ramifications to signing the participation agreement, since each spouse must fire his or her Collaborative Practice lawyer if the Collaborative Process breaks down. This inherent limitation on representation requires Collaborative Lawyers to be vigilant about the good faith and integrity of the couple before signing the collaborative agreement Each lawyer must ethically determine whether the risk is justified and advise her or his client accordingly. While the process is amicable, the attorney cannot be less zealous or thorough in fulfilling his or her responsibilities.
Once the collaborative agreement is signed the wife and husband select the dates for a series of carefully structured settlement meetings, which are complemented by pre- and post-meeting sessions between attorney and client and between both attorneys. Unlike traditional litigation roles, clients must openly participate in meetings. Unlike the litigation model, the collaborative attorney can and does speak directly to the other lawyer’s client when appropriate. This direct communication maximizes the group’s creative problem-solving potential and insures the adverse party is heard by opposing counsel. Being “heard” is at the heart of this process. Clients drive the Collaborative Process, not lawyers.
During meetings the couple and their lawyers include a collaboratively-trained psychologists (called a “Family Specialist” or “Divorce Coach”), who monitors the progress of solution focused discussions. As needed, the “team” may include a Financial Neutral, who works with the couple to develop budgets, asset analysis and future income projections. When special issues arise regarding a child, a Child Specialist may be consulted. Not all solutions are known to attorneys and experts are employed as part of the team to assist in evaluating and resolving disputes.
The Family Specialist helps the couple separate emotional issues from pragmatic solutions. Trained in the psychology of divorcing couples, Family Specialists are used early in the Collaborative Process to help clarify each spouses goals and enhance everyone’s ability to maturely express such goals in a reasonable manner. Family Specialists develop parenting plans appropriate to a child’s developmental stage, a significant financial and emotional savings for the couple.
The neutral Financial Specialist helps organize and evaluate assets and provide sophisticated financial projections related to support, anticipated expenses, such as orthodonture costs and college payments, and even engage in retirement and estate computations.
If needed, the process can include a child specialists to help keep a sharp focus on the children’s needs throughout the Collaborative Process.
Members of the collaborative team are authorized by the couple to speak to each other, which facilitates resolution. The team approach maintains the momentum of consensus needed to move the Collaborative Process from beginning to end. While confidentiality is waived among team members, all information disclosed in the Collaborative Process cannot be used if litigation becomes necessary, except, of course, the financial disclosure used in both litigation and collaboration.
The interdisciplinary approach provides clients’ with the expertise they need to understand alternative resolutions and the team can help the attorney guide the couple toward the resolution that fits best.
The Collaborative Divorce process concludes with the preparation of an amicable agreement which incorporates the best options available to resolve the unique situation of the family. Once executed, the settlement agreement is incorporated into a final divorce decree.
In the Collaborative Divorce process, the couple maintains control over the future of their family and participates in selecting the best choices available. A judge does not decided, each party decides. This greatly increases compliance with obligations, especially child support obligations. In the Collaborative Process, attorneys must frequently counsel their own clients to assume a more reasonable and compromising position. This role is usually fulfilled comfortably by more experienced lawyers. Experienced counsel are also better suited to selecting neutral financial experts to advise the parties and appraise business interests. All of these features can result in dramatic cost reductions in the divorce process.
Collaborative Divorce is a sophisticated option to litigation. Properly applied, it is equivalent to a new type of scalpel which can be used in the hands of a committed, experienced lawyer to separate a couple through bloodless surgery.