What do you do if your new client has just been served and he’s read up on his choices in the divorce process, so he knows that he wants to avoid the destruction of divorce court, that he wants to try to resolve his divorce issues using the constructive collaborative process? Or what if he just fired his litigation counsel because he heard of this thing called collaborative divorce and he wants to “stop the bleeding,” to try the collaborative process. Let’s say that he and his wife can’t even speak to each other at this point. Is there any hope?
Of course, there is! Just take a detour! Although there may already be some heightened animosity caused by the litigation process itself, the parties may still opt to proceed with a collaborative divorce. The most common misconception about divorce court is that, once war has been declared, there’s no peaceful way out.
So what do you do? Reach out to opposing counsel to inquire if she is trained in the collaborative process method and if she would be willing to proceed with collaboration. (E-mail me for a sample of such a “litigation freeze” letter.) Even if she is not trained, if she is open to collaborative practice, you may opt to proceed with collaboration with the idea that an experienced collaborative team will mentor her through the process. If she’s had some training already in mediation, as many attorneys have, this will be an asset. Or, if a collaborative training is coming up soon, the clients may be willing to wait to proceed until the attorney attends that training.
Sometimes it is helpful to recruit other team members with whom you have worked in the past to help introduce the concept of the litigation freeze and the collaborative divorce process to opposing counsel. Invite her to lunch with a financial neutral or a facilitator to discuss how the process works and how rewarding it can be, both for the clients and for the practitioners.
If the opposing counsel is open to proceeding with collaborative practice, then she must then persuade her client of the benefits such a divorce can offer. Help arm her with the necessary information to do that successfully. It may be helpful, depending on the nature of their relationship at this point, if your client reaches out, as well.
Once both clients have agreed, work with the opposing counsel to retain the neutrals, and schedule the first team meeting.
In the meantime, your client’s answer will be due soon, if it is not already past due. Or if the litigation process is further along, other filings may be overdue. In a collaborative divorce, the filing of an answer is not necessary. However, your opposing counsel should agree not to move for default if the answer comes due prior to the filing of the collaborative participation agreement.
At the first full team meeting, have the clients sign the participation agreement. Once signed, file it with the court, and notify the clerk that the case is now on the collaborative track, rather than the litigation track. Ensure that the clerk cancels any hearings already scheduled, such as a case management conference that may have been set when the case was filed.
It may also behoove you to file a stipulated motion to abate or to stay the proceedings while the clients proceed through the collaborative family law process. This way, any family process employee picking up the file in the clerk’s office or the judge’s chambers will be aware of its status.
The most common misconception about divorce court is that, once war has been declared, there’s no peaceful way out. If you’re the lawyer, make sure your client knows that there’s hope. And if you’re the client, make sure that your lawyer knows that you want to do whatever it takes to protect your relationships from the destruction of divorce court.
