COLLABORATIVE LAW DEFINED
Family law attorneys are well aware that for most clients, a contested family law case is anything but a positive experience regardless of the legal outcome. Clients are dissatisfied as a result of cost, as a result of the high level of stress and conflict which results from the litigation experience. While settlements frequently occur in family law cases, those settlements are often after significant time is spent in the “battle” and when a trial date is approaching.
In addition to financial costs, family law disputes also commonly involve substantial emotional and psychological costs. Mental health practitioners are all too familiar with the severe and long lasting wounds that high conflict family matters can inflict on the parties and on their children. While most competent family law attorneys are aware of this impact and may try to conduct their practice in a way to help minimize the harm, the litigation process ends inevitably polarizing and increases rather than decreasing the tension between parties as well as their ability to co-parent.
Stu Webb of Minneapolis, Minnesota, and Paulina Tesler of California were two of the pioneers in a collaborative law movement. In short, collaborative law is a method of handling family law matters outside the litigation setting.
THE CRITICAL ELEMENTS OF COLLABORATIVE FAMILY LAW
Collaborative Family Law is founded on three principles:
· A pledge not to go to court;
· An honest and good faith exchange of information by both spouses; and
· Solutions that take into account the highest priorities of both parties and their children.
Collaborative Law is a new, distinct and unique dispute resolution process option.
The hallmarks of Collaborative Family Law approach include:
· A shared commitment to proceed honestly and in good faith.
· An avoidance of the resort to litigation or even the threat of litigation.
· Active participation by the parties, including 4-way settlement conferences.
· Identifying common goals and legitimate interests of both parties with an attempt to meet the interests of both parties if at all possible.
· The potential to work directly with other professionals in a team approach to assist in a resolution process (counselors, accountants, etc).
· Joint retention of any additional experts needed in the process.
· Disqualification of all lawyers, other professionals or experts involved in the collaborative process from participating in any litigation proceedings between the parties.
Cautions in the collaborative process include:
· Since the process is dependent upon good faith participation, there is a potential for abuse;
· Formal discovery and court ordered procedures to compel production of information or evidence or to force compliance with orders is not available given the nature of the collaborative agreement;
· Whether there is a history of mental illness or uncontrolled spending or hiding of assets, the ability to resort to court enforcement may pose particular challenges;
· Parties must be able and willing to participate in face-to-face 4-way meetings;
· There may be a preliminary question of law or fact upon which all settlement options depend which cannot be adjudicated given the nature of the collaborative agreement, although mediation and arbitration are available;
· There may be an increased cost to a client in the event the collaborative process is terminated.
Benefits of the Collaborative Law Process:
· There is no financial or other incentive for attorneys to become “part of the problem” by refusing to participate in negotiations or taking “take it or leave it” positions.
· The specific needs and challenges of the individual family will be the guiding factors in crafting a unique agreement.
· Collaborative Law allows for effective inclusion of mental health professionals and financial specialists for maximum effectiveness in addressing emotional issues and need for financial planning.
· Collaborative Law significantly increases the likelihood of preserving a positive relationship for the benefit of the children.
· Collaborative Law tries to minimize hostility and negative conflict.
· Neither party has to face the risk or fear of an unknown imposed decision.
· Collaborative Law has a high level of flexibility to explore creative solutions.
· Collaborative Law maximizes the client’s privacy by avoiding filed motions in open court hearings.
· Collaborative Law offers the potential for costs savings.
· Collaborative Law offers the potential for parties to learn about and improve their communication, negotiation and problem solving skills.
Collaborative law requires a paradigm shift. The idea is to avoid the orientation that one party must win and the other party must lose on all or many individual issues and instead attempt to adopt a “win-win” orientation. For instance, the input of counselors or financial planners might be obtained with an effort to determine what resolution would help both parties move forward, rather than restricting arguments to what the law would require a parent to do. The traditional request for “maximum parenting time, minimum support” from a non-custodial parent is evaluated to determine if it is truly in the child’s and therefore parties’ best interest. The parties are encouraged to attempt to view the issues from each other perspective and the opportunity to manage conflict and educate and counsel a client during the process leaves the parties better able to negotiate future parenting issues as they arise.
Information Provided by Kelly Lonnberg