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Collaborative Law
COLLABORATIVE LAW EXPLAINED INTRODUCTION INTRODUCTIONIntroduction to the Introduction I originally wrote this page many years ago, when I was still representing people as a family lawyer. It is now 2014 and I have long since made a full transition to being a coach in the collaborative law process. However, I recently reviewed this discussion, written from the vantage point of a lawyer, and I still think it is helpful and informative. So I provide it with little change, except for some few additional comments from my current coach's point of view. When Lynn and Eric divorced, it really didn’t have to end badly. Twenty years of marriage and two great children (one starting college, the other in high school) - pretty good mental health all the way around - enough money so that desperate financial security wouldn’t spike the anxiety level...actually the only thing standing in the way of a good divorce was the lawyers. So what happened? How did these two good people end up despising each other? Why did they come out of the legal process (which settled, by the way) deeply embittered toward one another? It’s because of an adage I’ve repeated for years in my Family Law for the Mental Health Professional seminars: Lawyers are trained and educated - indeed they feel ethically obligated - to make a bad situation worse. The reason is the adversarial system of dispute resolution that lawyers are acculturated into. The idea has always been that if I represent my client “zealously” and the other lawyer does the same, then the independent decision maker (judge or jury) will be able to make a fair decision. Now on one level, it can’t be any other way. (Imagine if suddenly you were slapped with a lawsuit that you didn’t think was fair. You’d probably want someone who you knew was 100% in your corner. The legal process, after all, is a scary place for all but the lawyers who live there.) Yet on a deeper level, it is a method of dispute resolution that cannot help but lead to polarization - and that’s what lawyers have been trained to do. Lawyers tell a client what they are legally “entitled to,” so from the start we contribute to a rigidity borne of fear and self-protection. We learn to argue both sides of a case, not so we can develop empathy for the other party, but so we can undermine and defeat them. Anyway, Lynn and Eric settled their divorce after a “mediation” session in which the mediator shuttled from one conference room to the other, delivering offers, helping fashion responses, cajoling the recalcitrant parties and absorbing their hurt and anger. Each person’s real interests and concerns were not given vent so that in some way, amidst this terribly difficult time, these former lovers and current parents could have had an opportunity to hear one another and in some manner come together. More’s the pity, as the process ended with each person feeling they had lost. It didn’t have to be that way and a growing community of lawyers are standing up to the dominant culture of the adversarial system, pursuing a revolutionary and (dare I say it) healing brand of legal representation and counsel known as Collaborative Law. Collaborative Law initially in the early 1990's from the mind of a Minnesota family lawyer, Stu Webb, who simply refused to drag his clients into court on divorce cases - and he let his opposing counsel know it. He strove to construct an environment in which the lawyers could work together in fashioning a workable solution to their clients’ joint problem, rather than against each other. The prevailing assumption of the “zero sum game” in which one person’s gain always came at the expense of the other was re-thought. Lawyers, who were stressed and soul-weary from the hammer and tong of divorce litigation and the avoidable bitterness of countless Lynn’s and Eric’s, were drawn to this process. It took root in such diverse environments as Texas, Saskatchewan, Northern California....and Washington. THE EVOLUTION OF COLLABORATIVE LAW IN WASHINGTONThe Collaborative Law Professional Community in this state is now more than a dozen years old and going strong. There are more than 100 members of King County Collaborative Law and a strong state-wide organization, Collaborative Professionals of Washington State now exists to join the disparate practice groups in Seattle/Bellevue, Spokane, Tacoma, Bellingham, Olympia, Vancouver and Kitsap County. I have been very fortunate to have been there at the beginning, having served on the initial board of Washington Collaborative Law (now King County Collaborative Law) and been intimately involved with the establishment of professionals standards of practice and protocols. I and fellow collaborative professionals, Rachel Felbeck and Holly Hohlbein designed and provided the first home-grown basic collaborative law training which has brought more than 100 people into the practice state-wide. Initially, Collaborative Law involved only the two people dissolving their relationship and their lawyers. We soon learned, however, that the chances of a successful outcome were greatly heightened by engaging a Collaborative Team which consists of a coach, financial specialist and child specialist. We have found that, with the support provided by a team of experienced collaborative professionals, people can arrive at a set of agreements which best represents their highest goals, arrived at with good faith and integrity. What follows is a basic idea of how the collaborative law process works. HOW DOES COLLABORATIVE LAW WORK?In a collaborative divorce, both parties and their lawyers (and the rest of the team when they come on board) sign an agreement that neither side will go to court, but will, instead commit to resolving all disputes through agreement. In fact, if either side does go to court, then both lawyers must withdraw and the parties have to retain (and pay for) new counsel. The expense and difficulty of this transition, tends to “leverage” people into remaining in the collaborative process, rather than reflexively running into court if there is a disagreement. Rather than one person and their lawyer sitting across the table (metaphorically) from the other person and their lawyer, everyone is on the same side of the table and the problem is on the other side. No divorce comes without conflict. Even the most amicable parting will have certain areas of friction. Some dissolutions will bring deep and raw feelings around parenting, financial security or marital betrayal. Regardless of the kind or intensity of the disagreement, one thing is guaranteed - there will be a resolution, and a final set of court orders, even if it comes after a trial before a judge. Many couples have come to believe that it is in their best interests to arrive at a solution together, which is tailored to their lives and circumstances, rather than have a third person impose a decision upon them. This is particularly true when there is no way that third person can know the individuals and the nuances of their disputes and deepest needs as well as they do, themselves (See, Why You Really Don’t Want to Go to Court page found elsewhere on this web site). The Participation Agreement and corresponding commitment not to run to court tends to push the individuals (and their lawyers) to a much higher level of creativity in fashioning solutions. It should be noted, here, that many conventional litigating family lawyers resist the collaborative process, observing, rightly, that it can be an enormous hardship for people to invest time, money and emotional energy into this process only to start over again with new lawyers. While the misgivings of these colleagues are often well-taken, the risk of a case “falling out” of the collaborative process is fairly small, since more than 95% of cases entering the collaborative process (both nationally and locally) conclude with an agreement. However, we in the collaborative community believe it is essential for people considering this approach to understand that it may not be for everyone or for every couple. Your lawyer will explore this question in depth with you in your initial meeting - to come as close as possible to assuring that the collaborative process is a good fit for you and the dynamics and needs of your relationship. The key to making this process work is not the level of conflict between the parties, but whether each comes to the table with a commitment to act with integrity toward the other. If the individuals are prepared to act honestly and in good faith with each other, collaborative law will likely succeed. Trust can be tentative at first - in fact that is natural. As the process unfolds, and each person follows through on his or her agreements, trust strengthens. The normal tactics of the litigated divorce are not brought into play, which allows this process to take hold and gain traction. While in litigation, parties and their lawyers seek to withhold information unless it is specifically asked for, in the collaborative process, each side commits to provide all relevant information freely. Information is not seen as power. Instead, information is the essential tool for working together in fashioning a solution. The Key - To Understand and Address the Interests of Both Parties Lawyers ask a lot of questions. Usually, however, when we are litigating, we ask these questions in order to understand the opponent’s weaknesses. If I am going to court, I want to know what your vulnerabilities are, so I can exploit them. This is why family law litigation is so destructive. In the collaborative process, we ask a lot of questions too. However, now we have a different goal. Our exploration is now intended to learn about your legitimate interests, and how they can be satisfied. While a lawyer still owes a fiduciary duty of absolute trust to his or her own client, in disputes between people who have been closely involved and who will be in each other’s lives well into the future, the well-being of the other person is directly tied to that of our own client - particularly when children are involved. Anyone believing that they can “win” a divorce case with the other person “losing,” falls prey to a destructive myth - to their profound regret as years of distrust and bitterness over issues unresolved at the time of the divorce weigh both people down as they struggle to create a new life for themselves. The “engine” which runs the collaborative process is the “four-way meeting,” in which the parties and the lawyers sit together in a room and discuss each person’s needs and concerns and explicitly agree to work in good faith to achieve mutually beneficial goals. While some people are just too uncomfortable about the notion of sitting in the same room with their soon-to-be ex spouse - and in those cases we don’t insist on the four-way meeting - in most cases these sit-downs in the conference room of one lawyer or the other provide many opportunities to clear up communication and see the lawyers as problem solvers, not conflict escalators. Many times, the civil, thoughtful interaction of the lawyers has served as a model for the divorcing parties, themselves, as they work through their disagreements and deepest concerns about their future. While the first meeting will only involve the lawyers and he parties, subsequent meetings will often include members of the team, if it is agreed by everyone that their contributions will be necessary to move the process to the next step. This will be true for the financial specialist when the financial settlement is being explored. Participants may also find that the presence of a coach will provide the emotional support necessary if a meeting is going to cover emotionally sensitive areas. The Collaborative Team consists of the following core professionals: The Lawyers: These people are the almost always the professionals who introduce individuals to the collaborative process. The collaborative process will usually begin with each person retaining a collaborative lawyer, these people making contact and setting up the initial four-way meeting where, among other things, the Participation Agreement is reviewed and signed. Collaborative lawyers have many roles. They are counselors, advocates, minders of the process, legal advisors and drafters of the major documents. Each of these roles is critical in the excellent and ethical provision of collaborative law services. The Coach(es): Every divorce has an emotional component. Most people dissolving their intimate relationship have many deep and often conflicting feelings. The emotional experience - and particularly how this plays out in the spouses’ interactions - has a central impact on whether both people can access their higher level thought processes. They have to do this in order to consider their current needs, their future needs, the needs of their children, the financial and personal resources that will allow the people to get these needs met and how they can productively (and sometimes sanely) interact with their spouse in the years to come. This is the area of the coach’s expertise. This person is a mental health professional who has experience working with couples and individuals going through a difficult transition. The work of the coach is many-faceted including the provision of emotional support, psycho-education (particularly around divorce and conflict) and communication facilitation. In Washington, we have utilized a “one coach model” in which one professional works with both people, together and (occasionally) separately. We are finding that the “two coach model” in which each person has their own coach can also be a very productive approach. It has been used widely on other jurisdictions around the country to great benefit. You will want to discuss with your lawyer the benefits of the single coach or two-coach approaches. The Financial Specialist: This person is usually a CDFA (Certified Divorce Family Analyst) and they are highly educated around the financial issues facing people who are dissolving their marriage. This person will help both people construct budgets for their separate lives, identify the assets and liabilities and their values and help “model” various settlement scenarios for their future impact. Every Financial Specialist has their own spreadsheet software which generates extremely informative reports and capsules of the couple’s financial circumstance. He or she can also explain various tax ramifications of the decisions the spouses want to make. Here is also where people can get information and support (along with their lawyer) around such issues as how to handle the home, what to do about dividing retirement accounts and how to finance the life transitions which often accompany the end of a marriage. The Child Specialist: If you ask young adults whose parents divorce what was the worst part of it, they will often tell you that the adults got together and made plans about their kids’ lives and never asked the kids what they wanted. The Child Specialist is often termed “the voice of the child” in the process. This person is a mental health professional who is experienced in working with children. There are many ways the Child Specialist can serve a family with children: They can meet with the children over time to make sure they feel supported in the process of their parents’ divorce. They can provide education and guidance to the parents about children’s age-appropriate needs through the divorce process. They can provide information to parents about the idiosyncratic needs of their own children and give referrals to support within the community where appropriate. The Cost of a Collaborative Divorce Collaborative Divorce should not be chosen because of cost. It is certainly less expensive than a full-on litigated divorce, but the difference in expense between a collaborative divorce and a divorce that ultimately settles, where each person engages a professional, not hyper-aggressive litigation lawyer is roughly comparable. Certainly there are areas of cost-effectiveness because in the collaborative process, professionals with an expertise in a certain area (financials, emotional concerns, children) will work with the clients at a lower hourly rate than the lawyers will charge. While the collaborative process is not cheap, it does, in my opinion, provide a far greater “bang for the buck” than conventional litigation. If finances are a significant issue and make the collaborative process seem prohibitive, an excellent alternative to litigation is Mediation and I invite you to visit that page on this website for further information on that process.
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