Collaborative Law is an innovative approach
for divorcing couples who wish to
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Avoid the courtroom
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Preserve financial resources
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Put the needs of their children first
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Reduce conflict
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Maintain control of the decision-making process
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Make a long-lasting settlement that
meets the needs and concerns of both spouses and their children
WHY COLLABORATIVE LAW?
Problems with the Legal System
While practicing divorce law for more than a quarter
century, Arnold Cribari found himself more and more dismayed
with the inappropriateness of the court system for dissolving
marriages.
Lawyers are trained in the adversarial
system of jurisprudence, which is a win-lose, zero sum game.
Even the out-of-court negotiations in our legal system are based
on the power, pressure and threats as an incentive to come to
an agreement.
The adversarial approach can escalate the
conflict between the divorcing spouses and often exacerbates
their anger and distrust. A protracted, hostile process can be
emotionally damaging to the spouses and their
children, and generate monumental legal fees
that may greatly deplete financial resources.
If the negotiations in the
adversarial system break down,
power and decision-making is transferred from
the divorcing spouses to a judge. Most judges in
divorce court hate being there and are
overburdened with too many cases.
Why not mediation?
Mediation is a
settlement process that works when all of the following circumstances exist:
1.
there is a relatively equal balance of power between the
spouses
2.
they share some important common values, and
3.
they are both capable of advocating for themselves
In mediation, the two parties go to a
neutral mediator who helps them settle their disputes. If and
when a settlement is reached, the mediator advises each spouse
to have the settlement reviewed by their own separate attorney
before any formal agreement is executed.
Collaborative Law: The Third Way
In 1990, a Minneapolis divorce attorney,
Stu Webb, developed Collaborative Law as
a third alternative for divorcing couples. The
collaborative movement is now rapidly growing in
Westchester County and throughout the New York
City metropolitan area.
Collaborative Law is a healthy and respectful
alternative for resolving divorces. A
collaborative divorce restructures the family;
addresses emotional, financial, legal and
parenting issues for the present time and the
long term; and optimizes a divorcing couple’s
chances to make a divorce settlement tailored to
their needs and interests for now and for years
to come.
Collaborative Law, like mediation, is also a
settlement process. In contrast, however, when
collaboration begins, both spouses retain their
own attorneys who have special training in the
collaborative process. This way, each party
immediately obtains the support and advice of
his/her own lawyer, but the negotiations are
based on a cooperative model rather than an
adversarial one.
Instead of conducting adversarial negotiations
based on power, threats, and blind adherence to
the law, collaborative lawyers focus on the
needs and interests of both parties and their
children. They utilize active listening and
other mediation and peace-making techniques to
resolve disputes. This represents a sea change
in the kinds of skills that attorneys bring to
the negotiating table. Collaborative attorneys
are conflict resolution professionals;
traditional divorce attorneys are adversarial
professionals. Therefore, in order to optimize
the likelihood of a collaborative settlement,
both attorneys should have extensive and ongoing
training in Collaborative Law and Mediation.
At the outset of the collaborative process, the
parties and their collaborative counsel enter
into a participation agreement whereby they
commit to working out an out-of-court divorce
settlement that is fair to both parties. This
preserves the divorcing couple’s power and
privacy, keeping the information and decisions
in their hands instead of having a stranger in a
black robe determine their fate.
The participation agreement also requires – in
the unlikely event that negotiations break down
– that the collaborative lawyers withdraw and
the parties obtain new lawyers to serve as trial
counsel. This agreement to withdraw is very
beneficial to the divorcing couple because it
ensures that the collaborative lawyers cannot
financially benefit from any litigation and
trial; their sole motivation is to help the
couple reach an out-of-court settlement.
The parties agree to follow Ground Rules. The
first Ground Rule is “to attack the problems and
concerns at hand, not each other.” As suggested
by the first ground rule, negotiations are
respectful, although not necessarily friendly,
given the high level of conflict and/or distrust
that may exist between the couple. This is one
of the key advantages of collaborative divorce –
any conflict or anger is handled openly and
constructively by conflict resolution experts,
rather than being exacerbated by adversarial
experts.
Mental health professionals (divorce “coaches”
and a child specialist) are recommended to help
the couple cope with intense emotions, improve
their communication and focus on what is most
important to them and their children. A
financial specialist is recommended to help the
couple better understand tax consequences, their
finances, and how best to divide their assets
and income. The expertise of these professionals
can greatly increase the likelihood of a good
settlement, and the process remains economical
because the hourly rates for their fees are
usually substantially less than those of the
attorneys.
The settlement conferences known as “four-way”
meetings take place at the law offices of the
collaborative attorneys, who usually take turns
hosting these meetings. The lawyers typically
serve coffee, tea and other refreshments to help
keep the meetings cordial and respectful.
The initial four-ways are devoted to gathering
necessary financial information and
documentation such as tax returns, bank and
investment account statements, retirement
account statements and the preparation of
budgets and statements of net worth. If
necessary, the lawyers recommend one neutral
expert, such as a real estate appraiser or
forensic accountant, to determine the value of a
marital asset. The lawyers also obtain
information from the couple regarding their
children, and begin to discuss a parenting plan
with the couple.
At subsequent four-ways, the lawyers help the
parties identify their important needs and
interests, and those of their children (if there
are children involved). Once these needs and
concerns are fully understood and the applicable
law is explained, then settlement options are
proposed and considered. The goal is to make a
settlement tailored to these needs and
interests.
Once a meeting of the minds for settlement is
reached, the lawyers draft the settlement
agreement and uncontested divorce papers. Then,
these documents are signed under the lawyers’
supervision and submitted to the court. No court
appearance is necessary in the divorce court in
Westchester County and most other counties in
New York State.
Having helped a number of clients complete their
divorces with “win-win” results through the
collaborative model, Arnold is convinced that –
in the not too distant future – the majority of
divorces will be handled collaboratively. Even
spouses with a great deal of anger and mistrust
have been able to reach mutually beneficial
settlements thanks to the skill and creative
problem solving of the collaborative attorneys.
FAQsMany lawyers say they settle most of their cases. How is Collaborative Law
different from cases settled the usual way?
Most conventional family law matters are
settled "on the courthouse steps", at least figuratively. By
that time, much emotional damage has occurred and financial
resources have been drained. The process is largely driven by
intimidation and fear. In contrast, the Collaborative Law
process facilitates respectful problem solving. It is almost
always quicker,
less costly, more individualized, and less stressful than
litigation.
What happens if one side is dishonest
in some way, abusing the Collaborative process to gain an unfair
advantage?
This could happen. (It also can and does
happen in conventional legal representation.) What is different
about Collaborative Law is that the collaborative law agreement
requires the lawyer to withdraw if the client is continually
dishonest or abusive. For instance, if documents are altered or
withheld, or if a client is deliberately delaying matters for
economic or other gain, the lawyers have promised in advance
that they will withdraw, discontinuing representation of the
client.
If the
negotiations become extremely heated,
can Collaborative Law still work?
Absolutely. Collaborative lawyers are
trained in communication strategies that
help clients articulate the underlying
needs behind their anger. Moreover,
collaborative lawyers
recommend bringing mental health
professionals into the process to serve
as "coaches" so that communication is
more respectful and positive during
settlement conferences and to keep
intense emotions from thwarting the settlement
process.
Articles on collaborative Law :
For more information about the differences
between mediation, collaborative law and
litigation, read
"Divorce: To Mediate, Collaborate or Litigate -
That is the Question," by Arnold D. Cribari,
Esq. and Melissa Goodstein, Esq., published in
the Spring 2009 Newsletter of The Financial
Planning Association of The Greater Hudson
Valley. To learn how
the collaborative process can be beneficial in
our current down economy, click on
"A Kinder, Gentler Way to Part: Collaborative
Practice Benefits Divorcing Couples in Hard
Economic Times, published in The Westchester
Crusader, January, 2009.
For an in depth discussion on the
collaborative process click on
"Collaborative
Law : Divorce lawyer as Peacemaker", by
Arnold D. Cribari Esq. published in the
Spring/Summer 2006 edition of the Westchester Bar
Journal.
Also, click on to "The
Struggle to Preserve Collaborative Law Benefits
when Litigating a Divorce" by Arnold D.
Cribari, Esq. published in the Spring/Summer
2007 issue of the Westchester Bar Journal. |
