Collaborative Law — A Paradigm Shift to a New Beginning

It is the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed. —Charles Darwin

This week I attended the Inaugural Collaborative Family Law Conference of the Collaborative Family Law Council of Florida. It was so exciting to attend a conference with so many professionals dedicated to resolving family conflict in a peaceful and non-litigated way. We had workshops on negotiation techniques, helping clients through collaboration, creative financial solutions in collaborative cases and optimizing the mental health professionals in collaborative law.

But, perhaps my favorite workshops were the ones that addressed ways to spread the word of collaborative law. This is because I so much enjoy bringing this concept to my clients and facing the trauma of divorce and family litigation. After representing so many individuals in family court I have come to the absolute and unshakable belief that our adversarial process is the worst alternative for most families in transition. The decision to get a divorce is already one of the most painful and frightening decisions that a person can make. The husband and wife are already under enormous stress because of the facts that lead them to the lawyers office for the initial consultation. Too often the divorce is precipitated by financial difficulties, disagreements about child rearing, or perhaps the mistrust bred by infidelity. To then force the couple into a rigidly structured judicial system that rewards the best adversary with a “win” is so destructive to the family on many levels.

It is, I believe, common knowledge that litigation is extremely expensive.  The idea that one side should play “hide and seek” with information and only provide it to the other side when ordered to by a court is clearly not cost effective.  As a litigation attorney I have seen how the price of a divorce and continue to climb as we conduct depositions, business valuations, forensic accounting reviews, social investigations, and every expanding legal discovery.  Clearly all of this legal rangling takes a long time to play out while all of the parties lives are on hold.  Perhaps most tragic of all though is the emotional toll the litigated divorce has on the parties and their children.  As animosity is escalated, the children clearly suffer.

So, some professionals that have worked in the system for many years have developed an alternative. The new system, Collaborative Law, allows the participants, the divorcing couples and their lawyers, to work together with trained financial and mental health professionals to find the best solutions to the issues that need to be resolved by the family. The main premise of a Collaborative Divorce is that the clients and the attorneys work together through negotiations to reach a settlement which meets as many of the parties needs as possible. The process is client and child focused. The parties agree to be open and honest in their communication and in providing all necessary documents or information to make informed decisions. The participants all promise to be respectful and honor the dignity of the process and the participants. Everyone involved in the process is committed to working towards healing the parties and the family.  This means that the threats and intimidation are not used and there is never a goal of forcing the other side to prove their case to be successful.

Perhaps the hardest element of the collaborative process for untrained attorneys to grasp and agree to is the participation agreement. This contract, signed by the parties and the attorneys, provides that, should the collaborative process fail, the clients will retain new counsel to begin again. Most lawyers not trained in collaborative law will say, “I will work with the other side, but I will not sign a collaborative contract. I want to represent my client if settlement doesn’t work.” I am all too familiar with this statement because I made it before I understood the Paradigm shift. The shift is what allows the collaborative professional to fully participate in the process. The shift is when the collaborative attorney commits to laying down all the weapons in their litigation arsenal and fully embrace the new way of thinking and speaking that is completely collaborative.

Collaborative Divorce is the new big thing in family law.  It is also working its way into other areas of law when parties want to avoid litigation and find a new way to resolve conflict.  It is important, if you are thinking of seeking a collaborative divorce, that you ask questions of your professional to ensure that they are truly as committed to the process as you are. Ask about their training, their understanding of the process and their willingness to sign a participation agreement. Ask if they have a membership in a collaborative group in their area. There are no state guidelines for collaborative professionals in most states yet. But there are a growing number of professionals committed to this creative idea. Having spent two full days in a conference full of such professionals, I can tell you that you really “know it when you see it”.