Collaborative practice is a form of alternative dispute resolution that has been a part of the divorce landscape since its inception in the 1990s. However, notwithstanding its recent surge in popularity, many lawyers still lack a standard talking piece about the collaborative divorce option in their initial and ongoing lawyer-to-client conversation. Partly to blame is that many lawyers, especially those who are not collaboratively trained (such as the author of this article), have trouble explaining the collaborative process in a short, succinct talk.
Whether trained or not, every family lawyer should be able to explain the nuts and bolts of the collaborative divorce process. In fact, ethical rules appear to require it. The directive to present clients with a complement of alternative dispute resolution options is found in Maryland Lawyer’s R. Prof’l Conduct 2.1, Comment 5, which provides that “…when a matter is likely to involve litigation and, in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives.” Of course, the corollary to this premise is that clients need to know about the collaborative process to make informed decisions about their cases throughout all stages of the proceedings. So, what are the basics that every lawyer and client should know about collaborative divorce?
Any discussion about collaborative divorce rightly begins with its theory. In brief, collaborative divorce employs the vehicle of candor and transparency to steer couples to mutually acceptable resolutions while avoiding the trauma of the traditional adversarial model. The collaborative process is designed to promote settlement. Consequently, the process has a bulwark of incentives to prevent defection from the settlement process. The hallmark of those incentives is the requirement that clients may not continue to retain their collaborative-process counsel if they seek redress from the court. In addition to the prohibition against keeping their collaborative counsel in litigation, clients are also contractually forbidden from subpoenaing collaborative professional team members and introducing communications that were part of the collaborative process into evidence.
The collaborative divorce theory comes to fruition in a variety of practices ranging from those that start with just two lawyers to those that utilize a team of professionals from the get-go. The collaborative process may include a neutral financial advisor, a child specialist and divorce coaches. The constellation of advisors exists to overcome the communication barriers and emotional snares that may have plagued the divorcing couple, as well as to provide the parties with full information and expertise necessary for decision-making. In the collaborative process, lawyers still act as advocates for their clients in making sure that they are fully informed and that their needs are met, but lawyers refrain from positional negotiation.
The anatomy of the collaborative divorce process can take many forms, but the process typically begins with a four-way meeting with counsel and the parties where the parties identify their issues and needs. Participants then schedule further meetings, each of which begins with an agenda. Issues are dealt with one-by-one but only after gathering information and brainstorming options for resolution. Before each meeting, the parties (and any other relevant professionals) are tasked with bringing certain documents and disclosing any other information necessary to make the meeting productive. Generally, the parties meet separately with their divorce coaches, who are trained mental health professionals, to help them cope with the emotional component of the divorce. Cases can differ greatly in how many meetings are required to forge a settlement agreement. As such, the collaborative process can be a time-intensive endeavor, but it still holds good promise to outpace a traditional contested case meandering through the court system.
The cost of a collaborative divorce – like any case – varies. In the collaborative model, the parties deal with cost as part of their meeting agenda. At first blush, collaborative divorce may seem expensive because of the sheer number of professionals involved. However, the collaborative process’s emphasis on delivering a comprehensive set of services by specialists trained in areas that are relevant to the parties’ circumstances can make settlement more efficient and, ultimately, less expensive than traditional routes. Further, the collaborative process’s use of neutrals (in lieu of two, party-aligned professionals) for some issues, such as financial advising, may lead to cost-savings.
With this background, lawyers and clients alike can further explore collaborative divorce. Visiting the International Academy of Collaborative Professionals website at www.collaborativepractice.com is a good next step for finding collaborative divorce professionals.
Morriah Horani is an associate attorney at Pasternak & Fidis, P.C., and works with several collaboratively trained attorneys, Anne (Jan) W. White, Linda J. Ravdin and Vicki Viramontes-LaFree, in the firm’s Divorce and Family Law Group.