Collaborative Law — A New Choice for Divorcing Families

When a family is divorcing, they can choose to go the typical route–litigation–or an increasingly common alternative–mediation.  In addition to those more traditional choices, couples now have the option of what’s been come to be known as the “collaborative process.”

In the collaborative law model (also known as Collaborative Practice), each client hires a collaboratively-trained attorney.  Clients and their attorneys sit down together for four-way meetings structured with the goals of fair dealing and transparent negotiating. The parties and their attorneys articulate the underlying goals and interests of the divorcing parties and strive to reach those goals in order to create a fair and reasonable separation agreement.

There are several keys, in my view, to a successful collaborative law situation. Together, all of these requirements comprise the total “collaborative commitment.”

The most vital ingredient is for the process to be guided by two collaboratively-trained attorneys.  Although many experienced attorneys assume they have been negotiating collaboratively throughout their careers, my experience is that without tailored training and a belief in the “paradigm shift” taught only at a collaborative practice training, the real collaborative process just doesn’t happen, and the clients do not receive the benefits that are possible.

At the very first four-way meeting, the parties and their attorneys voluntarily review and then sign a Collaborative Process Agreement in which everyone agrees that if either party involves the court in the process (in other than the final divorce hearing or some other agreed-to situation), then both attorneys will withdraw from the process.  Thus, the parties would have to hire new attorneys in order to proceed with litigation.  This “collaborative commitment,” in essence an agreement to negotiate a resolution without court intervention, is the cornerstone of the collaborative process and the brilliant idea of Stu Webb, the Minnesota attorney and architect of the collaborative model.  The pragmatic collaborative commitment requires the parties’ individual and collective informed consent to the process, and serves as a deterrent to one or the other of the parties bolting from the process when the going gets tough.

The parties and attorneys also use an established protocol which includes, among other things,
1. Regularly scheduled collaborative meetings
2. An agenda in advance of every meeting
3. Minutes of the meetings, which are circulated to all the participants
4. Debriefing with the individual client(s) and with the other attorney and/or team members
5. Communication between meetings between each lawyer and his or her individual client, between the lawyers, and among all team members

I have come to understand and believe in the value of involving at least one collaborative coach, a collaboratively-trained mental health professional who works for the process and can guide parties through the meetings in the most productive way.  I have discovered that my clients who have used such a collaborative coach do reach agreement in a healthier and more productive way than the clients who refuse to do so.  In addition, if the collaborative attorneys tell their individual clients from the very beginning of the process that having a collaborative coach is “the way we do it,” then the clients accept this protocol willingly.

We also utilize other professionals on an as-needed basis during the process.  I find it is highly valuable to have a financial expert involved in order to make projections and explain to the clients their options.  Since this financial expert also works for the process rather than for one party, he or she can provide neutral information that everyone can accept and understand.

In addition, we may involve another mental health professional as a child specialist in order to help with the issues regarding the children during or after the divorce.  Again, because the child specialist is neutral, his or her opinion is accepted readily by the clients, and his or her suggestions are considered on their merits more easily than they might be were the child specialist working at the directive of only one of the clients.

All of these non-attorney professionals are hired jointly and by agreement of the clients, in the same manner that we would hire a business or real estate appraiser; thus, their neutrality is understood and valued.

My personal experience with the collaborative model is very good; I have had some incredibly rewarding and challenging cases in which the other attorney and I were required to communicate openly and often, to talk to each other and to our clients constantly, to draft agendas, to model good behavior for our clients in the midst of tough negotiations, and to keep the goals and interests of the clients in the center, where they belong.  Since a collaborative negotiation is, by definition, interest-based (as opposed to position-based), setting the goals and defining interests at the first meeting is an interesting and, I believe, necessary exercise.  I find it very helpful to work with my client before the first four-way meeting so we can develop, at least partly, the list of goals; every client has them, but some have to be coaxed to share them.  One of the most often shared is, “To reach a fair and equitable resolution in a cost-effective, dignified, and respectful manner.” Needless to say, I haven’t yet found anyone who disagrees with that one!  And I find that when the negotiations get really tough, my collaborative colleague (the other collaborative attorney) and I can often invoke one of the goals in order to   move the discussion along in an appropriate manner.

More possibilities abound in the collaborative protocol.  Although each case is individual in its needs, expectations, resources, personalities, etc., the collaborative model can be molded to fit. Each client needs a team during the divorce. Some people use their family and accountant and brother-in-law’s cousin and distant friends who have miserable divorce stories to get their information and advice; needless to say, this approach doesn’t often advance the best interest of the client.  So, by providing access to a team of collaborative professionals during the collaborative divorce, the divorce attorney can guide the client to educate him or herself about the reality and the possibilities.

All in all, I opt for choices.  Collaborative law is my favorite one, and I let my potential clients know that.  In addition, I encourage each of you readers (if you got this far in the article, you must be interested) to participate in the collaborative movement – educate yourself, your clients, your world.  Join us in expanding our options.  The possibilities abound…

Paula H. Noe practices family law in Cambridge, Massachusetts, where she is a partner in the domestic relations firm of Bowman, Moos, Elder and Noe, LLP.  Paula has been named a “Woman of Distinction in Law and Public Service” by the Massachusetts Association of Women Lawyers.   She is a founding member and past president of the Massachusetts Collaborative Law Council. She is also co-chair of the Family Law Committee of the American Bar Association’s Dispute Resolution section.  For more information, visit www.bmenlaw.com/Paula_H_Noe.htm.