COLLABORATIVE DIVORCE PRACTICE — A REVOLUTION IN FAMILY LAW
By: Natalie Wright, JD
Collaborative Law is a method of resolving disputes pioneered in the late 1980's by Minneapolis family lawyer, Stuart G. Webb. Since that time, Collaborative Law has grown and is now being practiced by attorneys throughout the United States as well as Canada, Australia, the U.K., New Zealand, Europe and Asia. The International Academy of Collaborative Professionals (I.A.C.P.) estimates that there are now more than 10,000 professionals trained in Collaborative Practice in the United States. There are more than 200 Collaborative Practice groups worldwide. The IACP has grown from 200 members in 2001 to more than 2,400 members in 2006.
In 2006, two books were published on the subject of Collaborative Divorce including Mr. Webb’s book, co-authored with attorney Ronald Ousky, titled The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids — Without Going to Court. The other book, titled Collaborative Divorce: the Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on With Your Life, was written by two other pioneers of Collaborative Practice, Pauline Tesler, M.A., J.D., and Peggy Thompson, Ph.D. Both books are written for consumers and both are very effective at explaining the collaborative process to lay people.
While there are collaborative lawyers in many different practice areas, the emphasis of collaborative practice so far is in the family law arena. This article will focus on Collaborative Divorce practice.
Though there has been exponential growth in the Collaborative Divorce movement in the last five years, many Arizona attorneys still have either not heard of Collaborative Divorce or do not fully understand the process. The purpose of this article is to inform about the Collaborative Divorce process and how it is being practiced in Tucson.
In Tucson, the Collaborative Law Group of Southern Arizona (CLGSA) was formed in January, 2001 when approximately 11 Pima County attorneys received an initial training in Collaborative Divorce process in Phoenix. In 2005, the CLGSA opened its membership to non-attorney professionals including mental health and financial professionals. The CLGSA now has 25 members from three disciplines and the members offer Collaborative Divorce services, a “team” approach to divorce that is explained in this article. The practice of Collaborative Divorce continues to grow in Pima County as more couples hear about this method of obtaining a divorce.
In a Collaborative Divorce case, both parties and their attorneys contractually agree not to use traditional litigation methods or go to court to resolve the divorce case disputes. Both clients sign a fee agreement with the lawyers and a contract with each other promising to fully disclose all relevant information on demand. The parties and their lawyers also promise not to use traditional methods used in litigation, such as hearings or trials, demand letters, settlement proposal letters, depositions, interrogatories, requests for production and the like. Instead, all negotiations are done in 4-way conferences with both lawyers and both parties present. The written agreement contains the requirement that neither attorney nor party may use another party’s mistake of facts or a misunderstanding to their advantage. A sample “Principles and Guidelines for the Practice of Collaborative Law” can be seen at www.collaborativepractice.com/t2.asp?T=documents.
The agreement also contains a provision that in the event either party wishes to withdraw from the process and use traditional litigation, then both collaborative attorneys must withdraw. Further, any other collaborative professionals that were engaged in the process are similarly disqualified from further work on the case and cannot be called as witnesses. This disqualification provision is the source of some misunderstanding and confusion with some non-collaborative attorneys. However, the disqualification provision is the hallmark of collaborative law and is essential to the process.
In traditionally litigated cases there is always either the implicit or explicit threat of going to court. “Agree with all of my client’s [unreasonable] demands or we’ll see you in court.” This threat, whether made explicitly or implicitly, is potent because it is a rare party who wants to go to court. Most people want to avoid the expense, emotional cost and uncertainty of giving their case over to lawyers and judges. Thus, even if the attorneys are “playing nice,” having 4-way conferences and working amicably to settle the case, in traditional litigation there is always the threat of going to court. In a collaborative case, the threat of “going to court” is completely removed.
Further, the withdrawal provision contains a significant built-in incentive for both the attorneys and the parties to stay the collaborative course, even when the going gets tough. For the attorneys, the withdrawal provision means, among other things, that they are out of a job if the collaboration fails. For the clients, it means that they must start over with new lawyers. This provides potent financial, time and emotional incentive to stay in the process rather than throwing out what has been accomplished and starting over.
Some attorneys have concern about this disqualification and withdrawal provision of collaborative cases. The CLGSA obtained an informal opinion from the State Bar of Arizona regarding the local Principles and Guidelines of Collaboration and whether the contract violated any Arizona ethical rules. The informal letter opinion gave a green light to collaboration in Arizona. Additionally, the ABA has recently weighed in on this topic and issued a formal ethics opinion and stated that “collaborative law practice and the provisions of the four-way agreement present a permissible limited scope representation under Model Rule 1.2. . . . We reject the suggestion that collaborative law practice sets up a non-waivable conflict under Rule 1.7(a)(2).” The ABA opinion follows several state opinions that, with the exception of one, have all opined in accord with the recent ABA opinion. The ABA opinion makes it clear that all of the lawyers ethical rules and standards of conduct still apply, including competence, communication, diligence and confidentiality.
One of the most exciting and revolutionary aspects of Collaborative Practice is the team approach now being used in Tucson and throughout the State of Arizona. The Team Model uses mental health professionals as Coaches, one for each party, as well as a Child Specialist, if applicable. Additionally, the team may include a Financial Specialist. The Team provides the parties the specialized help that they need. All professional members of the team commit to the same “Principles and Guidelines” contract discussed above. Additionally, all professionals involved are similarly disqualified from providing any services to either party outside of the context of the collaboration.
In a Collaborative Divorce, generally each party has a divorce “Coach.” The Coach is a mental health professional who assists the party in working through the emotional issues of the divorce as well as coach the party on effective communication skills. The coaches do not provide therapy in this process. Coaching is a crucial part of the collaborative process for many clients. In the past, we lawyers have sent our client to mediators, whether private or at Conciliation Court, to negotiate on their own. How can a party effectively negotiate for themselves when they are emotionally unable to assert their own needs or recognize the ways in which their speech and communication is ineffective? An experienced and well-trained coach can work wonders with a party’s ability to be effective in negotiations.
The clients may also engage a Financial Specialist, most often a CPA, C.F.P. or C.D.P. The Financial Specialist is a true neutral, neither representing nor advocating for either party. The Financial Specialist looks out for the best financial interest of both parties and their children. The Financial Specialist may be asked to do a business valuation, to advise on tax issues, and/or to provide projections of different scenarios and how each party’s financial status is affected both short-term and long-term. The Financial Specialist is there from the beginning to help craft win-win financial settlements and financial agreements that take into consideration the needs of both parties. While most experienced divorce attorneys know their fair share about taxes and financial matters, most are not CPAs or Certified Divorce Planners. In Collaborative Divorce, the couple has the benefit of receiving specialized help with their financial plan. Additionally, because the Financial Specialist is prohibited from providing future services to either client outside of the context of the Collaboration, the clients can be assured that the Financial Specialist is truly looking out for each client’s best interests with no personal agendas or promise of future financial gain.
In a typical case, the collaborative process starts with a consultation with a collaborative lawyer. The spouse is provided information about different divorce process options, including mediation, litigation and collaboration. If the spouse chooses collaborative process, he or she shares information about the process with their spouse, most commonly through a brochure and/or website. The other spouse then engages the collaborative lawyer of his or her choice and both attorneys are retained. From that point, the process involves each spouse meeting individually with their own lawyer and then meetings with both parties and their lawyers to negotiate all aspects of their case.
Typically at the first meeting the parties with the assistance of their lawyers decide what other team members to bring on board. In most cases, at a minimum, each party has an attorney and a divorce Coach. The client gives written permission for the coach and attorney to speak with each other so each professional can apprize the other of their mutual client’s specific needs. The Coach and the Attorney are allies on the same team for their mutual client.
The clients may also agree, with the input of their lawyers, that a Child Specialist is needed. In some cases, there is a disagreement between the parents as to what the custody arrangement should be. Other times, there is no dispute about custody arrangements, but one or both parents have concern about how their children are handling the divorce or have some specific issues they want to address. The Child Specialist then joins the team to meet with the parents and the children and to give input on the children’s issues. The Child Specialist is the voice of the children in the process and is an integral part of the team. The input from the Child Specialist is used by the parents and their professional team to craft their final custody and parenting agreements.
Child Specialists are not custody evaluators. The Child Specialist does not make “recommendations” as to who should have custody. The Child Specialist does provide input from the child’s perspective and educates on developmental issues relevant to the case. Ultimately, as in all aspects of the Collaborative Divorce, the parents decide. The parties do not have the opportunity to push off decisions on someone else.
Here then we see the significant similarity between Collaborative Divorce and Mediation. Both processes use interest-based negotiation rather than positional bargaining and both are client driven. Both processes also offer the possibility of amicable and peaceful resolution of conflict and the minimization of parental conflict. Collaborative Divorce, however, provides the parties with more professional support as they go through the process. Each party has their own attorney with them every step of the way. Collaborative Divorce is an excellent alternative to litigation for client’s who are, for whatever reasons, unable to negotiate for themselves in a mediation process and/or who require more extensive attorney involvement for discovery and valuation of assets.
All this being said, divorce is never easy. In virtually all cases, there are competing interests. Collaboration isn’t necessarily easy and from an attorney perspective, in some ways collaboration is more difficult than litigation. In a litigated case, if the attorneys fail to get the parties to an agreement, they can always take the case to the judge and the judge will then craft an order that resolves the issues. In a collaborative divorce, the ultimate responsibility for the settlement falls on the attorneys and the rest of the collaborative team. There is no court to resort to.
The Collaborative Divorce process provides support for the entire family and is respectful of each person’s needs. The people choosing this process often state that they “don’t want to fight” and “want to remain friends” after the divorce. Especially for parties with children, they want to divorce in a way that can preserve their relationship and enable them to effectively co-parent after the divorce.
It is truly revolutionary for lawyers to collaborate with opposing counsel and opposing parties. And while attorneys often work with other professionals such as financial planners and mental health professionals for the benefit of their client, the Team approach to divorce is revolutionary.
In my own practice, I have observed that when I explain the different divorce process options available, very few people would choose litigation as their preferred method. If they are in litigation, it is most often because their spouse began the litigated case or was not willing to attempt alternative dispute resolution. Anecdotally, I can say the people choosing collaboration and mediation are generally well-educated, professional and upper middle class. I can also say that when I explain these process options, more couples will end up choosing mediation than collaboration. The reasons that I’ve been given for this choice may surprise you.
In my mediation practice, I recommend to the parties that they seek independent advice of counsel. I make this recommendation throughout the process as it is my belief that parties benefit most from getting legal advice early on, rather than waiting to get their first legal advice after they have reached a full agreement. However, in more than 90% of the cases I’ve mediated, either one or both parties refuse to see an attorney at all. Remember, these are well-educated professionals. Why do they refuse to see an attorney?
When I inquire why the hesitation to seek legal advice, almost universally the comment that clients make is that they don’t want to hire attorneys because they fear the attorneys will “make them fight.” The public perception of divorce lawyers is that even if the couple is working amicably toward a solution, that if either of them goes to a lawyer, the lawyers will drum up a fight. Some clients perceive that attorneys do this solely to make money off of the client. Other clients don’t necessarily think that it is solely money driven, but perceive lawyers as people who like to argue and fear that they lawyers won’t be able to help themselves. Thus, when offered collaboration as a divorce process option, the client may respond very positively to the concept, but find it hard to believe that lawyers can work cooperatively. This lawyer avoidance by the public is something that should be taken seriously by our profession.
The public is demanding that we change how we do business. From the unbundling of services to limited scope representation to offering mediation and collaborative services, as lawyers we now have options for divorcing clients and can tailor the divorce process to the needs of the individual client. The face of divorce lawyering is rapidly changing. Just as ethics opinions, as cited above, required “informed consent” regarding the collaborative agreement, perhaps lawyers have an ethical duty to ensure that all clients seeking a divorce are informed of all process options, not just litigation. We are at a stage in the evolution of divorce law practice in which lawyers need to be prepared to switch gears among several different process modalities or refer the client to other practitioners when the client requests or the case demands a process modality which the lawyer is not prepared to offer. We are, after all, practicing family law. Perhaps we need to shift our focus more to the “family” part of our business.
Attorneys interested in Collaborative Practice are invited to an Open House hosted by the CLGSA on February 7, 2008 from 4:00 - 5:30 p.m. at the Ward 6 City Council Office, 3202 E. 1st Street, Tucson. Refreshments will be served. Attorneys interested in Collaborative Practice are recommended to attend an introductory training. Please refer to the www.collaborativepractice.com website for more information and dates/places of trainings and on Collaborative Practice groups in your area. Pima County attorneys can also go to the CLGSA’s website at www.DivorceWisely.com.