Collaborative Law as an Option to Resolve Divorce and Parenting CasesMar 13, 2019
This article on “Collaborative Law” is the second installment in a three-part series elaborating on the settlement options described in our comprehensive blog post “Options for Resolving a Divorce.”
The collaborative process is unique and unlike any other approach to settlement. In collaborative cases, the parties, their attorneys and jointly retained professionals work as a team to resolve all issues. The process is premised on cooperation, respect and the parties’ desire to achieve a mutually satisfactory outcome. The collaborative process is not adversarial like litigation and it is less adversarial than most other forms of settlement negotiations.
The parties participate in a series of short team meetings, often four to six meetings that last approximately two or three hours. Each meeting follows a predetermined agenda and is designed to address a specific goal or set of goals, working toward the ultimate goal of global dispute resolution. These sessions are private, respectful and scheduled at mutually convenient times. Information and documents are exchanged voluntarily, rather than as a result of formal requests, which parties often find intrusive and upsetting. In the meetings, the team (parties, attorneys and jointly retained professionals) works together to create results that meet the needs of both parties, rather than engaging in posturing and focusing on individual demands, rights, and entitlements. Each party is encouraged to offer ideas and suggestions that would fairly resolve the issues of concern raised by either party. This brainstorming environment, in which the goal is a satisfactory resolution for both parties, often leads to very creative results, a high degree of satisfaction by the participants and a more durable resolution.
Not surprisingly, the collaborative process has grown increasingly popular in New Hampshire and across the nation, including with celebrities and other well-known individuals. The collaborative process is ideal for parties who are still able to communicate, cooperate and treat each other respect. It is particularly useful in cases where the parties have children or otherwise need to maintain a respectful and constructive post-divorce relationship. It is not uncommon, however, for there to be difficult issues for the parties to resolve. The collaborative process neither anticipates nor requires prior agreement on any issues, except an agreement to use the collaborative process. Note, however, that the process is not ideal or advisable for cases involving mental illness, distrust, extreme anger, domestic violence, substance abuse or a history of significant financial deceit.
The hallmarks of the collaborative process are an agreement that neither party will go to court or threaten to go to court, open and honest communication, and a desire by all involved for a settlement that is mutually satisfactory. All team members must sign an agreement providing that the involved attorneys and other professionals will not participate in litigation of the matter if settlement discussions are not successful. This agreement incentivizes everyone involved to work toward resolution of the case, as nobody would benefit by losing the work accomplished in the joint sessions, including the help of the involved professionals.
At a bare minimum, the team is composed of the parties and an attorney for each party who is trained and certified in the collaborative process. Collaborative attorneys receive significant and ongoing training in a special set of negotiation skills, including the ability to foster positive, respectful and cooperative communications during collaborative negotiations. The attorneys work with their clients and with each other to ensure that the negotiations are respectful, balanced, positive and productive.
Most collaborative cases also involve a divorce coach. In fact, many collaborative attorneys will not handle such a case without a divorce coach because coaches are so helpful to the process and resolution of disputes. A divorce coach is a trained mental health professional who works with the parties and team to keep the matter moving forward in a constructive and productive manner. The divorce coach uses his or her skill set to circumvent emotional roadblocks to settlement and keep the parties focused on their shared goal of resolving the dispute. The divorce coach does not provide counseling and cannot be aligned with either party. To further ensure neutrality, the divorce coach is also barred from having a professional relationship with either party before or after the collaborative case.
Other jointly retained professionals may include financial specialists, child specialists, appraisers, business valuation experts or other such experts. Financial specialists are collaboratively trained financial professionals who assist the team with issues of asset identification, property division, income and expense projections, and tax implications of settlement. Child specialists are jointly retained mental health professionals who focus exclusively on issues relating to children and may, at the request of the team, communicate directly with the children. Finally, jointly retained appraisers for business interests, real estate or other property may be retained on an as-needed basis to work for the parties. It is important to note that all jointly retained experts, aside from attorneys, work for both parties and are not aligned with either party. Like divorce coaches, any such joint experts would be barred from having a professional relationship with either party before or after the collaborative case. The cost of jointly retained experts is significantly less than the cost of separately retained experts, as is typical in litigated divorces. Neither party may retain an individual expert, as the parties must work together, not separately, in the collaborative process to resolve their problems.
In sum, the collaborative process is amicable, private, respectful and significantly faster and less expensive than litigation. All funds spent in the collaborative process are spent to resolve the parties’ dispute. When parties reach a final agreement, settlement documents are drafted by the attorneys, sometimes in the presence of the parties, and then reviewed and edited by all until everyone is satisfied. Once filed, the settlement is typically approved quickly and without the need for an appearance in court. The court record available to the public will only contain final settlement documents.
For more information about the collaborative process visit the International Academy of Collaborative Professionals (https://www.collaborativepractice.com) or the New Hampshire Collaborative Law Alliance (https://collaborativelawnh.org/). For additional information on other settlement options like mediation, negotiation, neutral evaluation, and arbitration, please see the December 18, 2019 blog post entitled “Options for Resolving a Divorce” which can be found at: https://orr-reno.com/options-for-resolving-a-divorce/.
About the Author: Margaret Kerouac