Collaborative Law – Responding to a Need

By: Yeuh-Mei Kim Nutter

Brinkley Morgan Firm, Co-counsel

The Dissolution of a Marriage in a litigation setting is costly.  It takes its toll on all involved, the spouses, the professionals, the Court system and particularly, the children.

Divorces will continue to happen.  However, a family doesn’t need to deplete their savings, the children’s college accounts, nor draw blood in the process.

Too frequently, the first missile in a costly litigation battle is launched with the filing of a Petition, which is replete with allegations of financial marital wasting, lack of fitness for custody of the children and demands for high financial support.  Once done, the other spouse is compelled to launch back.  The battle lines are now drawn, and each party becomes polarized that their position is correct and necessary to prevail.  The clients’ then want the attorney to achieve that client’s polarized position, reasonable or not.

If this is how a divorce starts, how does the case get reasonably settled?  How are the needed family relationships preserved?  How do parents make decisions in their children’s best interest in the whirlwind of litigation?  How detrimentally are the children impacted?

Another alternative to litigation is the Collaborative Law process which is proving to be more beneficial to children than divorcing through a litigation.  The Collaborative Family Law process was found in 1990 by Minnesota attorney, Stu Webb. 

The principal of Collaborative Law is the shared belief of all participants that it is best for the family to commit to a process of honestly, fairness, cooperation, integrity, and professionalism focused on the well-being of the family through the dissolution of marriage.  The goal is to minimize (or negate) the negative social, economic and emotional consequences of protracted litigation on children and their families.

Likewise, parties who have been embroiled in litigation and who have become tired and fatigued from that battle, can switch to a Collaborative Law process and abate the litigation process in the interim.

The key to the Collaborative Law process is for all participants to trust in the process.  This is something that is not easy for the parties to establish as they go through a divorce.  Therefore, the commitment to the process is crucial.

The Collaborative Law contract is vital.  The contract outlines how all the participants will conduct themselves during meetings and discussions.  Stipulations are stated for full disclosure of all information during all discussions and that the process requires honesty and integrity.  The contract provides for limits by disqualifying the attorneys and any professionals from continuing to work with the parties in the event the process fails and litigation is filed.  The contract sets forth exactly what will happen if a client or an attorney withdraws from the process.

The disqualification of the attorney and professionals from litigation is part of the commitment to the process, along with honest disclosures and fairness.  It requires a client to seriously consider the financial costs of retaining new counsel, the costs for the learning curve for the new attorney to become educated and familiar with the case and commencing a costly litigation.  This helps keep the divorcing spouse from making hasty and rash decisions that would disrupt and terminate the process prematurely.

The real benefit of the Collaborative Law process is having four minds working together and creatively to reach one goal, instead of fighting each other.  The open-minded atmosphere without the threat of litigation allows for cooperation to achieve the goal and the shared principals.  In this way, the Collaborative Law process is client driven with the client emotionally accepting the marital breakdown and actively participating and facilitating their own resolution instead of handing their life and case to the attorney to resolve for them.

The Collaborative Law process allows for better financial and emotional stability during the process as issues of temporary support, timesharing and such are immediately dealt with.  This is usually the first important evidentiary hearing in litigation and sets an acrimonious tone.

Any professional experts needed are hired jointly, and this allows for those experts, be it the accountant, therapists, etc., to focus on problem solving for both parties.  It inspires credibility and reliance on the experts, as opposed to the need to then hire your own expert to counter the opposite party’s position.

Family issues are not swords used against the other parent over custody of the children.  Instead, the needs of the children and family, whether an evaluation for ADHD, co-parenting therapy, or such are addressed and help sought, as needed.

Power or knowledge imbalances between the spouses are equalized by the fact that each will have their own attorney, each will have equal access to all experts and each will have money for their attorneys and experts and all information needed.

The financial cost to the client can be substantial with most collaborative cases being completed for a third of the costs of litigation.

Collaborative Law is explained to the client as one of the options available for dissolution of marriage.  The client is told the characteristics of each of the options vis-à-vis Collaborative Law, litigation, mediation and such.  For each option the client should be advised of the cost, time, benefits, etc.  If a client agrees that Collaborative Law is the process that will work for their case, then an attempt is made to enroll the other party in the process.

The role of the attorney is still very important, but instead of representation in court, the attorney focuses on being a counselor at law addressing legal family issues and using creativity to problem solve.  The attorney will still represent and advocate the best interest of the client.  However, this process will allow the attorney to be more aligned with the client, and working toward the goal, instead of focusing on the need to prepare the case for trial and certain legal consequences, if certain actions are not pursued by the attorney.  The client’s overall perception is that the attorney is interested in the client and the outcome for the client and child and not treating that particular divorce as simply another case.

Though the Collaborative Law process offers a distinct alternative from litigation, it is not for all people.  Like litigation, or any aspect of life, there is no guaranty to success.  If the family history involves domestic violence or abuse, Collaborative Law is not an appropriate process to use.  Nor can the Collaborative Law process, nor Collaborative Law participation agreement eliminate the party that intends to be dishonest or intends to be difficult.  However, if the attorney learns that information is being withheld or misrepresented, then that attorney must withdraw from the process and the case, pursuant to the Collaborative Law contract.

The Collaborative Law process was born of a need for another alternative process for divorce.  It seeks to fill in a need for divorcing parents to avoid the high financial and emotional cost and damage associated with protracted litigation.  It is a process that is attractive to the matrimonial professionals that are likewise frustrated with the high conflict of many and most divorces and the inability to help a client reach a fair resolution without the constant threat of litigation.

Litigating a divorce is putting your life into the hands of professionals and the court to decide for you.  The Collaborative Law process is set up to provide the parents with the information, legal advice and guidance, other professional guidance and assistance needed to allow them as the spouse and parents to participate, facilitate and be responsible for arriving at solutions that are best for their children and their future co-parenting.  It gives the family the opportunity and control to determine the fair dissolution of their marriage and their future relationships.

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