Define Collaborative

I attended a luncheon recently with a speaker who discussed what exactly constitutes a “collaborative divorce.” I hadn’t realized that the question was open to debate! Did he agree that one could perform a collaborative divorce with just two attorneys, one for each party,so long as the participation agreement specified that the lawyers were out of the case the minute one of the parties filed in court? “No,” he responded. “The process facilitator, also known as the mental health professional, is critical to the process and cannot be eliminated.”

While I do not agree, I must say that I understand his point of view. While the attorney disqualification when one (or both) of the parties throws in the towel is crucial, and is the hallmark of collaborative practice, so, too, is the management of both emotion and communication that the process facilitator provides, that distinguishes the kinder, gentler divorce from the traditional, courtroom, no-holds-barred war in which so many folks today feel compelled to engage.

Yet I recently discussed with another attorney his one-attorney collaborative model. Two parties and one lawyer! It opened my eyes that we should consider other formats with which we could use the same principles as collaborative practice, but tailor them to the diverse needs of our clients. Every client is unique, with different issues, different financial means, different interests, etc., so why force every client into the same strict collaborative model? Especially at a time when we are trying to get the word out about collaborative, and many of us are working towards collaborative-only law firms. Why limit your client base? A cooperative approach may not be strictly collaborative, but it, too, can be a peaceful resolution of a client’s divorce, negotiating agreement without giving in. Be flexible.

Consider using collaborative principles in the following scenarios:

  1. Parties may not want to include a mental health facilitator on the team. Their issues may be purely financial, and they may not have negative feelings towards one another. Although the facilitator might be a valuable asset to the team, if money is tight, then consider that there are situations where he is not absolutely essential.
  1. If parties have little assets or debts, and they agree from the get-go that alimony is not an issue, the financial neutral might not be essential to their team.
  1. Consider the possibility of the one-attorney collaborative model. While not strictly collaborative, if one of the parties retains you and the other party doesn’t want to spend the money on a lawyer, and they agree that, if they cannot resolve matters with you and the other neutrals, assuming there are any, you are disqualified, then take that case. (Just don’t forget that, ethically, you represent only one party, and both parties should sign an agreement indicating that they understand that you only represent Party A, and that Party B may seek legal counsel at any time.)
  1. Sometimes your client will retain you before the spouse retains a collaborative professional, or worse, after the spouse retains a litigator. If the spouse has not yet retained counsel, inform him/her of the collaborative process, and give him/her a list of collaborative attorneys with whom to consult to discuss the options. If s/he has already retained a litigator, you will have an uphill battle, but it is not impossible. Suggest to the litigator a litigation freeze so that both clients may try collaboration. If it does not work, the opposing party is free to proceed with the litigator.

Similarly, the parties may wish to proceed with collaborative for their long-term resolution, but may have already retained litigator(s) to resolve certain emergency issues. As long as the parties agree to a litigation freeze once the emergency issues have been handled, they may proceed with collaborative.

  1. Some parties may be willing to sign the participation agreement, but they are not willing to participate in joint sessions. While this will slow down the process and cost the parties more fees, if they understand that, you can proceed with the collaborative process. It may be that the neutrals meet with each party and his/her attorney separately, alternating meetings until an agreement is reached. Or the entire team may meet with the parties separately so that both attorneys are aware of what occurs during each meeting. Although the parties may be less willing to agree to that model, it will likely result in a quicker resolution.
  1. Parties may agree to sign the participation agreement but would like to work with a professional who is not (yet) collaboratively trained. While it may be challenging to work with such a professional, it is also a great opportunity to introduce this process to others. You may end up working with an attorney who is unable to make the paradigm shift. But you may open another professional’s eyes to the benefits of collaborative practice.
  1. What if a party hires both a collaborative attorney and a litigator? Generally, we do not want parties to be able to easily threaten that they will just see the other side in court. Those parties likely will not be as committed to the collaborative process if they have a litigator ready for court, especially if that litigator is making promises of all the things that they can win for the client in court. But, some parties will not feel safe unless they have a litigator in their pocket. Successful collaboration may still be possible.

As this new practice method gains popularity, it is important to not shortchange ourselves by refusing to take cases that do not fit the traditional collaborative model. By listening to the parties about their issues and needs, we can tailor the process for each individual couple. At worst, remember, a cooperative divorce process is peaceful, too, and can result in agreement.

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