The litigation system that we inherited from common law England is not well suited to resolving family disputes.
Lawyers who have litigated divorces in the courts for decades have come to understand that litigation is not the preferred route to deciding
marital discord. Fully contested litigations leave both spouses bloodied and have a permanently negative effect on children.
There are no real winners in matrimonial cases resolved through litigation.
Seeking a better paradigm, matrimonial attorneys turned to mediation, which solves many of the problems created by the litigation process, but
has its own inherent weaknesses. Many mediated agreements are later set aside because financial disclosure was lacking, or because one or even both
parties lacked proper legal representation. Now, couples have the option of using the collaborative divorce process, in which the parties and his
or her attorney expressly agree not to go to court and with the assistance of an interdisciplinary team resolve their divorce respectfully. To learn
more about collaborative practice, follow the tabs at the top of the page.
The collaborataive divorce process is the most recent paradigm which attempts to avoid the harsh
damage caused by litigation while preserving the substantial benefits of the mediation process with each party having professional
representation.
Frequently the children also have a child specialist representing their interests.
Collaborative law is a multi-disciplinary procedure in which each spouse and his or her own attorney contractually agree, in writing,
to resolve all issues on an amicable basis without resorting to litigation, except to obtain court approval of the settlement agreement
and to sign necessary orders or judgments to effectuate the agreement. The collaborative lawyers cannot serve as litigation counsel.
Thus, all participants in the collaborative process, clients and lawyers alike, are highly motivated to resolve the dispute without
judicial intervention.
The collaborative process does not work for all couples. Each spouse must agree to total financial transparency during the
collaborative process. The standard of honesty is so high that a lawyer must either terminate the collaborative process or withdraw
if his or her client is being deceitful. The process relies on honesty, cooperation and integrity. For some couples, this standard
is as unreasonable in divorce as it was in marriage. For other couples, and their children, collaborative law provides a multi-
disciplinary model that protects the dignity and long term interest of all family members.
There are three phases to the collaborative process.
First the divorcing couple is introduced to the option. With his or her attorney, each person explores whether they and his or her spouse is mature enough to dissolve their relationship without litigation. Financial issues are explored, the marital estate is defined and child care options discussed. The person is then offered the option to bring material home to his or her spouse which describes the collaborative alternative. If both spouses feel collaboration is appropriate, they each select lawyers who have been extensively trained in the collaborative process. On Long Island, this training is provided by the New York Association of Collaborative Professionals. Only members of this organization have been trained in the collaborative process. 
Untrained lawyers frequently call what they do “collaborative,” but in fact it amounts to “smiling litigation.” Collaborative practice requires lawyers who have extensive training and experience.
In Nassau County, a group of independent professionals trained in collaborative process have formed a practice group called Collaborative Dispute Resolutions.
Once you and your spouse have found collaboratively trained lawyers, the lawyers contact each other and arrange the topics to be reviewed at the initial collaborative meeting.
A major goal of the first meeting is the resolution of the collaborative participation contract, which is the heart of the process. The collaborative participation contract provides that each lawyer must withdrawn from representation if the process breaks down and litigation becomes necessary. There are obviously serious ramifications to signing the participation agreement, since each spouse must fire his or her collaborative practice lawyer if the collaborative process breaks down. If the collaborative process breaks down, or is terminated by either spouse, both clients may be forced to incur substantial expenses to retain new counsel for the ensuing litigation. Thus, a notable risk that is unique to the collaborative process is that the other party has the power to terminate the collaborative process and thereby terminate the attorney-client relationship of the other spouse. This inherent limitation on representation requires collaborative lawyers to be vigilant about the good faith and integrity of the other spouse before signing the collaborative agreement at the first meeting. Each lawyer must ethically determine whether the risk is justified and advise the client accordingly. This ethical decision falls upon the shoulders of the lawyer, not the client and making the right choice is critical to the success of the process. This is the step where proper training and experience are crucial.
Thus, the collaborative process places intense demands on the participating attorneys from inception. While the process is amicable, the attorney cannot be less zealous or thorough in fulfilling his or her responsibilities. Indeed there is a clear risk that a spouse who has something to hide will affirmatively promote the collaborative alternative to an ignorant spouse rather than risk exposure through the more traditional litigation process.
Once the collaborative agreement is signed by counsel and clients, the second stage of the collaborative process begins. This stage is characterized by a series of carefully structured four-way meetings, which are complemented by pre- and post-meeting sessions between attorney and client and between both attorneys. Unlike traditional litigation roles, clients must openly participate in four way sessions and cannot hide behind counsel. The specific positions taken by the clients and the lawyers in four way meetings is mapped out with counsel before each session and reviewed after each session. Unlike the litigation model, the collaborative attorney can and does speak directly to the other lawyer’s client when appropriate. This direct communication maximizes the group’s creative problem-solving potential and insures the adverse party is heard by opposing counsel. Being “heard” is at the heart of this process. Clients drive the collaborative process, not lawyers.
During the second stage of the collaborative process collaboratively-trained psychologists or social workers (called “divorce coaches”), child specialists and financial planners may become involved. Much like the litigation model, not all solutions are known to attorneys, and experts are employed to assist in evaluating and resolving disputes.
The divorce coach helps the client separate purely emotional issues from pragmatic solutions. In fact, divorce coaches, trained in the psychology of divorcing couples, can be used early in the process to help clarify client goals and enhance the clients’ ability to maturely express such goals in a reasonable manner.
The neutral financial specialists help the parties organize and evaluate assets and provide sophisticated financial projections related to support, anticipated expenses, such as orthodonture costs and college payments, and even engage in retirement and estate computations.
The third component of the interdisciplinary team is the child specialist. A child specialist may be involved from the inception to guide a couple through the difficult process of initially telling children about the divorce. Child specialists help the team keep a sharp focus on the children’s needs throughout the collaborative process.
Members of the collaborative team are authorized by the couple to speak to each other, which facilitates resolution. The team agreement helps start and maintain the momentum of consensus needed to move the collaborative process from beginning to end. While confidentiality is waived among team members, all information disclosed in the collaborative process cannot be used if litigation becomes necessary, except, of course, the financial disclosure used in both litigation and collaboration.
The interdisciplinary approach provides clients’ with the expertise they need to understand alternative resolutions and the team can help the attorney guide the client toward the resolution that fits best. The interdisciplinary team enhances and supplements, but does not supplant the lawyer’s role.
The third and final stage of the collaborative process is, of course, resolution. Once a couple has seen the options available for their unique situation, they must reach a binding written settlement and enter a judgment. Resolution is accomplished in the same fashion as a settlement agreement in litigation. One attorney drafts the settlement agreement which is reviewed, discussed, clarified and modified by the group. Each client is therefore more fully informed about his or her obligations and rights. Once executed, the settlement agreement is incorporated into a final divorce decree.
The collaborative law process differs from the litigation process. In collaborative law, the couple maintains control over the family future and participate in the choices available. A judge does not decided, each party decides. This greatly increases compliance with obligations, especially child support obligations. In the collaborative process, attorneys must frequently counsel their own clients to assume a more reasonable and compromising position. This role is usually fulfilled comfortably by more experienced lawyers. Experienced counsel are also better suited to selecting neutral financial experts to advise the parties and appraise business interests. All of these features can result in dramatic cost reductions in the divorce process.
While not suited for couples with a background of abuse or for couples who are not ready to solve their current and future dissolution problems, collaborative process is clearly an excellent option. It is a tool which should be used when appropriate. Properly applied, it is equivalent to a new type of scalpel which can be used in the hands of a committed, experienced lawyer to separate a couple through bloodless surgery.
What is collaborative divorce practice?
Collaborative divorce provides a couple with the option to resolve their matrimonial matter with respect out of court.
How does collaborative process differ from litigation?
In litigation, a judge decides all issues. In collaboration, the couple decides how they will resolve their situation and their children’s lives between themselves with the assistance of their collaboratively trained lawyers and other professionals.
How does collaborative process differ from mediation?
In mediation, a couple works with a mediator. In collaborative divorce, each spouse has a trained collaborative lawyer and usually a divorce coach, financial specialist and child specialist. This interdisciplinary approach expedites the resolution of the divorce and produces a more resilient agreement.
Does collaborative divorce work for all couples?
No. Couples with a history of domestic abuse rarely use collaborative process. However, for those couples who can use the collaborative process, it provides a far superior result. To succeed in a collaborative process, each spouse must be able to be open about finances and be willing to develop solutions that work for both spouse’s and for the children.
How can I get more information about collaborative divorce?
Click the article below or call Charles McEvily at (516) 222-0202.
“Team Divorce: The Benefits of Collaborative Divorces” The Matrimonial Strategist. September 11, 2007
