The Collaborative Process: Initial Conversations Between Co-Collaborative Counsel and Choosing Neutrals

collaborative process team members

As soon as both clients have chosen their collaborative process attorneys, if you have not yet, reach out to your co-collaborative counsel (that would be “opposing counsel” in a litigated case) and introduce yourself.

You should begin discussing who might be appropriate team members in light of the issues involved in the divorce at hand and whether there are any urgent temporary matters.

If a temporary matter must be addressed expeditiously, you should work with the other lawyer quickly to retain the neutral professionals and to schedule the first professionals teleconference and the first full team meeting. If that cannot happen soon enough, you and the attorney may need to work together with the parties to resolve the temporary issues before the neutrals are retained.

Discuss whether the couple would like to proceed under a one-coach or a two-coach model. Certain situations may require a deviation from your standard community model. Be open to modifying the standard protocols to meet the specific needs of the parties, and also to experiment with different models.

Often, the lawyers will choose a facilitator and a financial neutral. When time is of the essence, or it is likely the two clients cannot agree on which collaborative process neutrals to engage, this process works best. (Disagreement by the clients on how the team should be organized is rare; clients generally trust their lawyers to tell them how the process should be structured.)

But, even in the pro bono collaborative process, if several volunteers are available, the clients may request to interview the neutrals before deciding whom to retain. If the parties are more hands-on and reasonable, without time pressures, then permitting them to consult with various neutrals and to have a say in who is retained makes good sense. It is the clients’ process, and some will want more control over it than others. Decide with the other attorney on three financial professional volunteers and three facilitator volunteers to recommend to the clients, and allow the clients to interview them, if they so desire.

To avoid running into the problem of the clients choosing different experts, ask them to rank the neutrals, and try to retain only their first or second choices.

You should also begin discussing the need for any other professional neutral, such as child advocate or an appraiser, at this time. However, it may be too early to determine whether those neutrals are necessary. Once they are on board the team, the facilitator and the financial professional should provide assessment tools to enable the team to determine which other collaborative divorce professionals are necessary to assist the clients in meeting their needs.

Discuss the language of the participation agreement with the other attorney. Often, standard forms work best, but, depending on the specific clients involved, you may need to revise the agreement usually used in your community.

The attorneys may choose to include their clients in these discussions or may opt to keep them out of this stage of the negotiations, depending on the personalities involved. That decision should depend on the individual clients and how involved and in control they want to be.

Often, I draft the proposed agreement and send it to all of the professionals asking for revisions. Once approved by the professionals on the team, the agreement is sent to the clients for their review. This is a good way to get the ball rolling, and it is the rare case in which a client raises concerns about any specific provisions in the collaborative process participation agreement.

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About this week’s author Joryn Jenkins.

joryn-white-headshot-150x150Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University.  She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership in the American Inns of Court Movement.  For more information on Joryn’s professional experience, take a look at her resume.