• Cincinnati Academy of Collaborative Professionals
• Hamilton County Domestic Relations Court
• Clermont County Domestic Relations Court
• Warren County Domestic Relations Court
• Hamilton County Clerk of Courts
• Hamilton County Common Pleas Court
• Hamilton County Juvenile Court
• First District Court of Appeals
• Cincinnati Bar Association

Federal

• Administrative Office of the U.S. Courts
• Federal Judicial Center
• Supreme Court of the United States (Official Site)
• U.S. Circuit Courts of Appeals
• U.S. Sixth Circuit Court of Appeals
• U.S. Bankruptcy Court, Southern District of Ohio
• U.S. District and Bankruptcy Courts
• U.S. Supreme Court Historical Society
• U.S. Tax Court

State of Ohio

• Ohio Attorney General
• Ohio Supreme Court

• Cincinnati Academy of Collaborative Professionals
• International Academy of Collaborative Professionals
• Cincinnati Bar Association
• Ohio State Bar Association
• American Bar Association
• Southwest Ohio Trial Lawyer’s Association
• Ohio Academy of Justice

Other helpful links >

If both spouses do not agree to end their marriage, or if they are unable to reach an agreement on all of the issues incident to the ending of the marriage, the only alternative is for one of them to file a Divorce action in the Court.  Any issues that the husband and wife cannot ultimately agree upon will be decided for them by the Court after a trial.

2.    Do you have to live in the State of Ohio in order to have your marriage terminated by a Court in Ohio?
Yes.  At least one of the spouses in a Dissolution action, or the filing spouse in a Divorce action, must have been a resident of Ohio for at least six months before filing the action in the Court.

3.    What has to be proved for the Court to grant a Divorce?
Ohio law sets forth various “grounds” for the termination of a marriage by Divorce.  These grounds include “gross neglect of duty”, “extreme cruelty” and “living separate and apart without interruption or cohabitation for one year”.  In addition, if not denied by the other spouse, a Divorce can also be granted on the grounds of “incompatibility”.  Courts are inclined to view evidence related to the “grounds” in a manner that tends to favor finding that the specified grounds have been established.  Except in rare instances, usually involving financial misconduct or actions that affect the best interest of the minor children, the grounds for Divorce usually have little bearing upon the manner in which the Court will decide the other issues incident to the ending of the marriage.

4.    What makes Collaborate Divorce different?
In the Divorce process referenced above, the parties essentially surrender control of the process and the manner in which they will resolve the issues incident to the ending of their marriage, and allow the Judge to make those decisions for them based upon evidence presented at a trial.

In a Collaborate Divorce the husband and wife solve all issues themselves with the assistance of their attorneys (and in some cases a neutral family relations specialist and/or a financial planner) who have been specially trained in the Collaborative process.  Whereas a Divorce involves an adversarial relationship between husband and wife and their attorneys, and its resulting adverse effect on the emotional health and well-being of the entire family, a Collaborative Divorce involves the parties working together with their attorneys to resolve all of the issues incident to the ending of their marriage in the manner that works best for them and their children.  This is done through meetings that take place out of Court and involve both spouses and their counsel.  Husband and Wife and the attorneys all sign a Collaborative Contract.  The spouses then disclose the goals and interests that are most important for them to achieve through the process.  These are used to assist the clients in reaching a resolution of the issues that will hopefully achieve both person’s goals and interests.

There is a requirement of complete “transparency” throughout the process and all relevant information is divulged and exchanged.  Of all processes available to end a marriage, for many people the Collaborative process is the one that is most likely to cause the least amount of additional damage to the relationship between the spouses, which is extremely important to the wellbeing of their children.

5.    Is Collaborative Divorce right for everyone?
The ending of a marriage involves many sensitive and personal issues and no one approach will necessarily work for everyone.  Nevertheless, it is the opinion of John Heilbrun that the Collaborative process will work best for most divorcing couples.  We will explore with you whether the Collaborative process is right for you and your spouse.

6.    How long will the process take?
This is a very difficult question to answer and depends upon a variety of factors including the types of issues that are in dispute and the process that the parties use to end their marriage.  Usually, if the parties proceed by Dissolution, the entire process will take less time than if the parties are unable to reach an agreement and proceed with a Divorce.  Even the Dissolution process however, may take several months.  Divorce actions which involve more complicated or involved issues, including parenting disputes, may take a year, or even more.

7.    How will property and debts be divided?
Ohio law provides that ultimately, the Court is required to divide marital assets and liabilities in an “equitable” manner.  The starting point for considering what is equitable is equal, although if the Court determines that equal is not equitable, it has the authority to divide the assets and/or liabilities in a different manner.  If the spouses are able to reach an agreement they will decide the manner in which their assets and liabilities will be divided, rather than a Judge.

8.    What about property or debts that either party had prior to the marriage or other “separate” property?
Generally, Ohio law provides that the Court is to divide between the parties all of their “marital” property and debt.  Generally, “marital” property and debt is considered all property and debt accumulated during the term of  the marriage, regardless of which party may have accumulated the same by their income or efforts.  Property or debt that either party brought into the marriage which can still be identified at the time that the marriage is to end, is generally considered separate property, and will usually be retained by the spouse who brought the property or debt into the marriage.  Again however, the Court has the right to achieve what the Judge considers an “equitable” result, and that means the Court can even Order that separate property be divided.  There are other types of property that will usually be considered to be “separate” property including assets that either spouse has inherited, gifts to one spouse or compensation that one spouse has received for pain and suffering as a result of a personal injury to that spouse.  In addition, there are certain circumstances where assets or debts that may be brought into the marriage may become mixed – part marital and part separate.  These can be very complicated determinations that will require the assistance of experienced and competent counsel.

9.    Under what circumstances is spousal support (alimony) to be paid?
Ohio has a statute that sets forth 18 different factors that the Court is to consider in determining whether to require one spouse to pay the other spousal support following the ending of the marriage.  The 18th and last factor is “any other factor that the Court expressly finds to be relevant and equitable”.  Ohio law does not provide a formula for determining whether spousal support should be paid, and if so, how much or for how long.  Generally, the longer the parties have been married and the greater the disparity in their income and earning capacities, the more likely it is that the spouse with the higher earnings and earning capacity will have to pay spousal support to the other spouse, and the longer that obligation will continue following the end of the  marriage.  The determination as to whether spousal support is appropriate in a particular case, and if so, how much should be paid and for how long a period of time, is a complex issue that requires the assistance of experienced and competent counsel.

10. What happens when there is a child custody dispute?
At the present time there are essentially two ways that the rights and responsibilities involving the parties’ children can be allocated following the end of the marriage.  One way is for one spouse to be designated the child’s “residential parent and legal custodian” and the other spouse designated the “non-residential parent”.  Under this status the “residential parent” is the parent primarily responsible for the children, and that parent  has the right to make all primary decisions concerning the children.  The other spouse has certain rights and responsibilities toward the children including the right to spend time with the children, the right to obtain information about and attend the child’s extracurricular activities and healthcare appointments, as well as the responsibility to pay monetary support, “child support”, to the residential parent.

The other way of allocating rights and responsibilities involving minor children is Shared Parenting.  Shared parenting occurs when either the parties jointly enter into a written agreement called a Shared Parenting Plan under which they allocate between themselves their rights and responsibilities involving the children, or, if there is no agreement but one or both parties wants shared parenting and files a proposed Plan, the Court may determine that it is in the best interest of the children for there to be shared parenting pursuant to the written Plan submitted by one of the parents.  Shared parenting does not necessarily mean that the parties will equally share time with the children.  Many Shared Parenting Plans provide for the children to reside primarily with one parent.  A Shared Parenting Plan must include agreements involving a variety of issues related to the rights and responsibilities of the parties involving the children including the schedule of time that each parent will have with the children, where the children shall attend school, who will be responsible to provide health/medical insurance coverage for the children, how health/medical care decisions involving the children shall be made, whether one spouse shall be required to pay child support to the other, and, if not, the manner in which they will divide the children’s expenses between themselves, and restrictions on either parties’ right to relocate their residence without obtaining the prior consent of the other spouse or an Order from the Court.

11. If there is no agreement, how are “custody” decisions made?
If the spouses are unable to agree upon the manner in which they will allocate between themselves their rights and responsibilities involving their children, the Court will have to make this decision for the parties and their children.  These are the most difficult decisions that a Domestic Relations Court has to make.  The law provides that all such decisions are to be made by the Court based upon its determination of the “best interest of the child”.  There are a variety of factors that the Court is required to consider in making that determination.

Some of the local Courts have Parenting Departments consisting of trained personnel who may be ordered to do a comprehensive investigation in cases where the parents cannot agree upon the manner in which they will  allocate their parental rights and responsibilities.  In addition, either parent has the right to request that a Guardian ad Litem be appointed for the children.  That person, usually an attorney who has been preapproved by the Court, will do an investigation and prepare a report for the Court setting forth the Guardian’s opinion as to the allocation of parental rights and responsibilities that will be in the children’s best interest.  In other cases psychological evaluations may be ordered.  The results of all of these investigations and evaluations will be considered by the Court in determining the best interest of the children.  Contested custody cases are extremely complex and expensive, and require the assistance of experienced and competent counsel.

12. How is child support determined?
Ohio has child support guidelines that assist in determining the amount of child support that one parent is to pay the other for the children following the ending of the marriage.  In cases where the combined income of parents exceeds $150,000.00 however, the Court has to determine child support on a case by case basis.

13. Is child support required in cases of shared parenting.
Just because the parents enter into a Shared Parenting Plan, or the Court Orders the adoption of one spouses’ proposed Shared Parenting Plan as being in the best interest of the children, does not mean that neither parent will be obligated to pay child support to the other.  To the contrary, in most cases involving shared parenting, one spouse is required to pay child support to the other.  Depending upon the time allocation that is included in the Shared Parenting Plan and/or the extent to which the parents’ earnings are more equal, the amount of child support to be paid may be less than the child support guidelines would otherwise provide.  There are some cases where neither parent may be required to pay child support to the other.

14. How do I choose my attorney?
Certainly, you should choose an attorney who has the qualifications, experience and competence to assist you in the difficult process of ending your marriage.  In addition however, it is important that you feel comfortable with the person that you choose to represent you as your attorney in this process.  Are you comfortable talking to the attorney about your situation?  Do you feel that he/she is concerned about the welfare of you and your family?  Do you have confidence in the attorney?  Is the attorney someone you feel you can trust?  Do you feel like you will be able to talk with the attorney about the issues that will be involved in the termination of your marriage?

Another very important factor you need to consider is whether you can afford to pay the attorney.  Most attorneys who practice in the area of family law charge on an hourly rate and the rates charged differ greatly.  You do not want to begin the process with an attorney who you do not believe you will be able to continue to afford to pay throughout the process, as this will likely only result in your ultimately having to get another attorney which will cause delay and additional expense.

What is “collaborative law” anyhow? In a nutshell, it is a process of working through a legal dispute, usually a domestic matter, in which the parties and their counsel agree not to resort to the courts.1 Their so-called “participation agreement” includes rules of engagement whereby the lawyers will

• Cooperate in providing disclosure and discovery
• Model for their clients a commitment to honesty, dignified behavior, and mutual respect
• Neither prepare nor file any document with any court except by mutual agreement

Similarly, the parties agree

• Not to ask or expect their attorneys to advance unethical or illegal positions
• To make full and fair disclosure to their attorneys and each other of all pertinent facts
• To communicate respectfully and constructively with each other, discussing settlement only in conference – not at unannounced times by telephone or unannounced appearances.

The common commitment is cemented by the lawyers’ promise that if they cannot reach a negotiated solution, both will withdraw so the parties can hire other counsel to litigate their case.

Collaborative Law is a movement still largely concentrated in the domestic field that grew from one burned-out divorce lawyer’s cry, “There must be a better way!”2 The various collaborative divorce models developing across the country have in common a “team approach” whereby each side may have a therapist or coach as well as a lawyer, and one financial advisor may act as a consultant for both. But what gives the process its unique dynamic is the lawyers’ agreement to put down some of their professional weapons.3

How Does Collaborative Law Work, and Why?
The Structured Four-Way Commitment. Achieving the goal of the Collaborative Law contract means NOT having to go to court. The requirement that all the lawyers be disqualified in the event of a breakdown assures that participating counsel are motivated to make the process succeed. Thus the diplomat’s skills become as important as the warrior’s in “winning” the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve success. Walking out in anger, or provoking the other side to do so, ceases to be a viable tactic.

Setting up collaborative representation in a divorce is an educational process culminating in a set of agreements about how the two parties and their lawyers will work together. First one’s own client needs to hear about the basics of divorce law, the dispute-resolution continuum,4 and the range of a lawyer’s services from which he can choose. The collaborative lawyer keeps responsibility for solving the problem firmly on the client’s shoulders rather than proposing successive solutions for the client to criticize. She does help the client identify his substantive goals and priorities, and when she is confident that the client understands the choices before him, they sign a Collaborative Law retainer agreement.5 Then together they plan how to draw the other party into the collaborative mode. The first attorney will suggest the collaborative model to the other spouse’s attorney if one has been identified, and if necessary will provide information about it.6 If not, she will write and propose the model directly to the second spouse, providing a list of counsel trained and knowledgeable in the process.7 While prior training is beneficial, the basics of Collaborative Law can certainly be learned in the context of one’s first case.8 Once both parties and their lawyers have had their questions answered and are ready to sign on, customarily they will set up their first four-way meeting to execute the basic agreement to use Collaborative Law.”9

The agenda at the first “four-way” may include discussions about the employment of neutral experts regarding the finances and psychological issues regarding the children. The lawyers should already have conferred to review any interim problems and identify “hot-buttons,” but the primary function of the meeting is to install a collaborative “container” around the parties and their issues, including a schedule of further meetings. Each side then usually conducts a short debriefing session, to take stock of what worked and what didn’t, after which the process should be ready to move into the phase where the real work gets done.

Without court rules setting discovery deadlines, documents still get produced because no one is being made to comply by pressure from an opponent. Instead of a financial expert’s time being eaten up in deposition defending one side’s view of the facts, he can be running “what-if” projections on alternative settlement numbers for both parties. Effective cooperation, rather than the risk of what might happen in court, propels the process because if it stalls and causes a loss of trust, both parties and both lawyers will have failed. Team Approach. Collaborative Law, as practiced in Georgia and elsewhere, gives equal emphasis to the financial and emotional aspects of divorce, as well as the legal processes with which lawyers are most comfortable. Some divorce lawyers are satisfied with their own expertise in all these areas, and may even see other professionals as threatening their control of a case. But for many others, sending the client to a communications skills coach or child development specialist is a relief from burdens they feel less equipped to handle.

Financial planners, using modern software to analyze the long-term impacts of alternative support arrangements, can help the parties find the most tax-efficient solutions, while satisfying both the paying and receiving spouse that they will work as projected. The collaborative model encourages the parties to hire one expert to evaluate property, instead of making them pay two to do the same work and defend their disparate findings.

The expanded professional team approach offers clients a coordinated, consistent and efficient group of professionals who know how to work together effectively to serve the interests of the re-structured post-divorce family. In the manner of “free trade” versus “protectionism,” it also increases the overall professional services pie by encouraging referrals between the disciplines.

Success is Measured Differently. Our legal system relies on the notion that two or more professional adversaries representing the parties to a dispute will draw forth all information relevant to the contest in the process of advocating their clients’ best positions, thereby allowing the decision-maker to determine the “truth” and to make the best decision. This process assumes that the only real interest of the parties is to “win”. In that sense it reflects the attitude that upon the decision to divorce, the marital relationship becomes a mere struggle for power or property wherein the participants must compete to “win” the power and its associated by-products.10

While hardball trial lawyers may dismiss the notion of law as a “healing profession,” it remains true that every encounter our clients have with us or the courts tends either to serve or deter healing. Particularly is this so in the stressful passage of a divorce. Ignoring the scarring impact of a litigated divorce on the parties doesn’t diminish the damage done.11

Collaborative Law goes beyond allocating interests in the “marital” and the “separate” estates, to value and preserve a third, their invisible “relational” estate. This is a range of interests vitally important to clients, but usually treated as inevitable collateral damage in adversarial divorce proceedings. It includes the children’s relationships with the extended family of both parents, the web of friendships the spouses shared, their ability to parent effectively after the divorce, and to meet comfortably at future life passages such as graduations, marriages, births and funerals. It also includes the ability of each client to look back on his or her own conduct during the divorce with a sense of dignity and self-respect. Divorce achieved collaboratively preserves to the clients the integrity that comes from valuing what was positive in the marriage as a chapter in their respective life histories. It enables them to feel that under the greatest stress they behaved consistently with deeply held religious and ethical values.12

Questions Lawyers Most Frequently Ask About Collaborative Law
What About The Duty of Zealous Representation? Every lawyer seems to remember the concept of “zealous representation” from law school, but may forget its true place in the hierarchy of his duties. It certainly does not oblige him to use any and all means to achieve everything his client may demand during the course of a representation, or to fight tooth-and-nail for every last dollar on the table. Indeed no one of the functions of a lawyer–advisor, negotiator, intermediary and advocate–has primacy over the others.

“As advocate,” says the Preamble to the Georgia Rules of Professional Conduct, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” As negotiator, it also says, “a lawyer seeks a result advantageous to the client, but consistent with the requirements of honest dealing with others.” The Rules encourage lawyer and client to discuss and agree on the goals of the representation and the means used to achieve them.13 That ethical dialogue often ultimately produces a set of objectives quite different from what the client brought to her first meeting with counsel.

But how different can those objectives be? Collaborative Law is part of a continuing proliferation of dispute resolution alternatives which includes the “retainer for limited purposes” or “unbundled legal services.”14 In California, where the latter concept originated, a well-reasoned opinion says that it is ethical for a lawyer even to ghost-write pleadings and give legal advice to a client without appearing as counsel of record, or even disclosing his role to the court.15 Where a retainer agreement excludes the pursuit of rights and remedies that a court could provide, obviously the careful lawyer will make sure the client understands and accepts the risks associated with those limitations. According to the California opinion, he may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of retention. With respect to such problems he would be obliged to advise a client about his or her rights, the alternatives available under the circumstances, the consequences of each, their cost and the likelihood of their success.16

Under Georgia law, absent any other agreement an attorney has apparent authority as to procedural or tactical matters17 but it is the client who decides issues that affect her substantive rights, including the settlement of her claim.18 Accordingly, though the Collaborative Law retainer agreement alters the usual allocation of authority on procedural issues, it changes nothing about substantive matters. Furthermore though the attorney’s services may be limited, they must nonetheless be competently provided, i.e. with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.19 The protections of the lawyer-client privilege, and the lawyer’s other duties of loyalty, diligence and confidentiality are likewise unaffected.

Does Collaborative Law “Protect the Client” (and Thereby the Lawyer Against a Malpractice Claim)? Answering this question requires us first to consider how much “protection” the divorce client enjoys under prevailing practice. We start by noting that there is rarely a domestic outcome that hits every one of the client’s original targets. The conventional wisdom used to be that if either spouse left the courthouse happy, the other one must have gotten a bad deal. Depending of course on the facts of the case, the standard by which most family lawyers would expect to have their work judged is that the settlement should be economically at least workable, with no unhappy surprises or unforeseen tax consequences, and should give both spouses the chance to be good parents to their children. Being a competitive exercise, litigation20 proceeds by selective disclosure and tactical maneuver, mobilizing evidence and witnesses favorable to one side and suppressing or discrediting the ones favorable to the other. Particularly where clients are disturbed and vulnerable as in a divorce, the warrior’s first instincts are to “throw up a perimeter” and fire off heavy rhetoric or onerous discovery to let the other side know they’re in for a fight. We hear the client groan, but persuade him that it’s for his own “protection,” The tone thus having been set, the other side responds in kind. Differences between the parties are emphasized so as to eclipse areas of agreement. To the first offer of settlement the stout-hearted advocate may say, perhaps over-protectively, “I wouldn’t let my client agree to that.”

The lawyer’s instinct to prove her zeal by adopting the client’s positions and attitudes often leads to unrealistic expectations. Reality may not set in until trial looms or the liquid assets that might have provided a readjustment cushion have been consumed in the struggle. Hasty settlement on the courthouse steps undermines any sense of control in the client, and increases the risk of drafting errors. When the terms are less favorable than the client was prepared to expect, he may be subject to either “buyer’s” or “seller’s remorse”. And the high emotions and unpredictable results of a jury trial carry their own risks of dissatisfaction. A suit for the higher fees incurred only invites a counterclaim for malpractice.

Removing the element of combat naturally disconcerts lawyers who have not learned other ways to resolve a clash of interests. Being accomplished in the use of the Civil Practice Act to ferret out discoverable information or to preclude untimely claims and issues, one may feel unprotected or even helpless without those weapons in hand. But are they necessary to provide a client the essential benefits of legal representation? The Collaborative Law approach recognizes that in domestic matters, the client often has enough knowledge of the essential facts, or enough trust in the other party, for instance, to proceed without court-supervised discovery.21 Furthermore, expertly hidden assets may well not be discoverable with any reasonable degree of effort. So little if any value may be given up by renouncing the tools of formal discovery.

Unlike mediation without the assistance of lawyers, clients in Collaborative Law can have as much hand-holding as they want. They get the benefit of the lawyer’s investigative and analytical skills in detecting any possible fraud as the facts are assembled. They get sound real-time advice in setting goals and skilled help in negotiating. And it all proceeds at a pace not dictated by the “hurry up and wait” demands of a court calendar, so the parties have time to reality-test each other’s proposals, and to get comfortable with their deal before signing it. The main difference from litigation is that the lawyer’s advocacy is focused on persuading the other spouse rather than a judge or jury.

Collaborative Law cannot work with parties who have significant psychiatric problems, or where there is a pattern of domestic violence or with people who are fundamentally dishonest or unscrupulous, or unable or unwilling to follow through on their commitments. But for parties who are willing to invest in the process, it offers a more satisfactory outcome than litigation, and accordingly more real protection for both client and lawyer.

But Don’t Clients Hire Fighters Not Settlers? A lawyer who like most bills himself as a fighter is likely to attract clients who want to fight. When one’s only tool is a hammer, everything looks like a nail. But in the writer’s experience, one who casts oneself as a settler of disputes attracts a remarkable number of callers who fear getting enmeshed in litigation more than they fear getting less than top dollar at trial.22

Some of course are looking for an easy way out. They want the mediator to make the other spouse accept their views, and don’t understand that he can’t just tell the couple how to resolve their issues. That opposite spouse may be tempted to use mediation but feels vulnerable even with counsel at his elbow, assuming he can find a lawyer willing to take such a mere advisory role. These people share a belief that hiring an attorney will mean losing control of their cases and that the lawyers will delay resolution by inflaming feelings on all sides. Many can afford to pay for good counsel but stumble around on bad advice because they can’t overcome their gut-level dislike of lawyers. Collaborative Law is a framework in which this potential clientele can be served. Since the first Georgia Collaborative Law training in October, 2000, some 83 lawyers and 53 other professionals have taken it. But public awareness has grown quickly from stories on ABC-TV and Fox News in Atlanta, and Collaborative Law has been regularly featured in the past year at family law and ADR seminars, both in Georgia and nationally. The more it is understood and promoted as an option by the mainstream of the domestic bar, rather than draw away existing business it stands to attract more.

Conclusion
Collaborative Law is a genuinely new paradigm for the legal resolution of disputes. It has particular advantages in family matters as a structure in which lawyers can help divorcing spouses find genuine “win-win” solutions with all the protections of conventional representation, and express their better selves in the process.

View this article at: http://www.mediate.com/articles/wildauR.cfm
This article is provided by Mediate.com, the most visited dispute resolution site on the Web.

Collaborative Family Law has the distinct advantage of emerging into changed world. Beginning with the Pound Commission in the late 70′s the legal profession has recognized the need to do a better job responding to client concerns. Mediation served as the ice breaking ship that has opened up the channel for client-oriented dispute resolution services. The collaborative model will become mainstream in a significantly shorter period of time than it has taken for mediation–which still is working towards universal acceptance. But as with mediation, it is critical to the success of the CFL movement that we professionals deliver on the express and implied promises we offer of a more meaningful process for divorcing clients. Every group of collaborative professionals has an extraordinary (and oft-ignored) opportunity to work on achieving the goal of acquiring more clients and keeping them in a CFL case, and it is an opportunity that does not require them to wait until the clients materialize.

Three conceptual frameworks for examining the development of the collaborative model are: issues relating to the skills required of the professional in the context of client need; issues relating to the relationship and dynamic between collaborative professionals; and, issues relating to the formation of a collaborative group or organization. It is this last category that holds the key to the objectives of obtaining clients and keeping them. The challenge comes from the fact that while organizational issues are perhaps the most important areas to develop for the success of a group, success requires commitment and coordination of a group of individual attorneys which is as challenging as herding cats. Nonetheless, organization structure can directly address the dual concerns of acquiring clients and keeping them in the process.

As any group is attempting to establish itself in its community, the organization can provide credibility and legitimacy to the movement that as individuals we lack. Association with local, regional or statewide bar associations have assisted numbers of emerging CFL organizations to move forward in establishing themselves in their various communities in a way that helps overcome client skepticism about this new approach. The combined financial commitment of individuals in organizational form creates opportunities for marketing through brochures, videotapes, websites and media advertising that would be prohibitive for individuals. What began as a grassroots movement, is now coalescing into a national/international movement with the evolution of the International Association of Collaborative Professionals. Further evidence of the value of organizational influence. The major impediment to client growth is consumer ignorance. Organizations have the greatest capacity to provide information and education about the benefits of the collaborative process.

In order to keep clients committed to the process, it is not enough for the professionals just to be committed to the process. They must have the skills and capabilities to respond to all the challenging dynamics the clients present. These skills are known and have been well developed in the parallel paradigm of facilitated dispute resolution–mediation. What too many groups overlook, is the opportunity for the development of these skills and capacities that exists within the membership of each group or organization. Consider the untapped resources that exist within any given group:

Vicarious case practice–Based on a commitment to meet and share, those attorneys who have collaborative cases could share the evolution and development of their collaborative processes with other members of the group who do not presently have collaborative cases. This allows vicarious participation and the development of shared understandings, protocols, and standards of practice within the group on an accelerated basis.

Program development–Every group will have members with varying levels of experience in interest-based negotiating and facilitated dispute resolution. There is no end to the need for training, if one aspires to reach the highest levels of skill. Drawing on the talent in an organization for presenting topics for discussion and role play dramatizations of challenging aspects of the process, will greatly accelerate the development of skills necessary to deliver a quality process for clients.

Mentoring–Perhaps mentoring is the most important function a group can establish. In this organizational context, mentoring identifies a program in which more experienced professionals perform the following: assisting those who are having their first experiences with the process and/or who are having difficulties in a case; provide third party mediation services in cases where clients and professionals are getting stuck or reaching impasse; and, most importantly, intervene where the attorneys are having difficulty establishing a collaborative relationship in a particular case or where one attorney perceives the other is not adhering to the principles and guidelines of the group.

We tend to get too close to the collaborative model too quickly. By focusing on the micro aspects of what we are doing, we miss the most important macro aspects. Consider the fact that as attorneys practicing in the adjudicatory model, we spend years learning the rules and procedures of that system which were created by the legislature and the decisions of appellate courts. The collaborative commitment to work outside the adjudicatory system will not succeed in a vacuum. There must be well developed applications to the principles that will provide clients with their best opportunity for success by providing the their attorneys and collaborative professionals with a core of uniform processes and protocols. These protocols need to enhance the ability of the professionals to skillfully deliver on the promise that Collaborative Law offers to clients.

View this article at: http://www.mediate.com/articles/editrose2.cf
This article is provided by Mediate.com, the most visited dispute resolution site on the Web.

When I personally embraced the process of mediation in 1980, I had no grasp of the enormity of its potential. I simply viewed it as another more client-friendly method for practicing law. The deeper I became involved in the movement and the more I committed my professional work to developing facilitating skills, the more I understood the profound change I was making on a professional level. Nonetheless, as the 80’s became the 90’s and we moved into the 21st century, I continued to be struck by the resistance in the legal community to the principles and concepts of mediation. To quote Barbara, “enter Stu Webb…” with his idea of collaborative lawyering.

If his idea had lain dormant in the frozen tundra of a Minnesota winter, only to be discovered by future social archeologists, he idea would be hailed as the missing link! As it is, we have all been present at the birth, so to speak, as he took the conceptual framework of mediation and morphed it into the Collaborative Law movement. In his inspiration, he unlocked the resistance of many lawyers to the challenge of facilitated dispute resolution by designing a process that brought it into the practice of law. This was a natural and evolutionary adaptation that sprouted another branch to the family tree.

Implicit in this profoundly important development is a challenge that will measure client success, in the short-term, and the significance of this branch of the tree, in the long-term. The challenge comes from the interface between the conditioning effect on lawyers of using power for control in the adjudicatory model, and the facilitative characteristics necessary to create and manage a process that is client centered, client empowered and client controlled. The optimistic view is that over time (and we are talking decades in the context of a professional movement), collaborative professionals will be exposed, on a case by case basis, to the skills of more experienced professionals. As each becomes a participant in and a witness to, the small miracles created in such a structured process by the clients, the hope is that the desire to become more skillful and less controlling will compound and regenerate. The risk is that the simple imposition of the Collaborative Law structures (e.g. participation agreement, principles and guidelines, commitment to withdraw if litigation, etc.), will be seen as success in and of itself. Put me in the camp of belief in the former.

I have always admired Pauline’s capacity for articulate expression and find that she figuratively takes words out of my mouth but with an eloquence that I covet as I read her work. It is extremely important that the pioneers and leaders of this grass-roots movement continue to define the conceptual focus of the field as being client-centered processes, as she does in the outset of her article. Her discussion about the relationship between mediation and the collaborative movement in the marketplace of the consumers of these professional services, reminds me of a conversation I had with the owner of a small independent grocery store in my community a couple of decades ago.

A developer was building a small shopping complex around the corner from the “Mom and Pop” store and the anchor tenant was a major chain grocery store. I asked my friend one day, as I was picking up some groceries, if it was not discouraging to see the commercial behemoth that was going to open in the same neighborhood. No, he answered, not at all. He went on to say, that the opening of a major chain store that serviced the same types of products as they sold, would increase business, not diminish it. I was struck by the positive view and attitude and by such a positive aspect to naked commercial competition. I believe that the same positive outcome awaits the maturation of the Collaborative movement as it shares territory with mediation. The combined weight of the two will have client-centered processes dwarfing litigation as the system of choice within another decade or so. The 60% of clients who currently choose to commence their divorce processes in California without attorneys will provide a consumer base that as rich as the oil deposits of the middle east as the public becomes more aware that professional services that respond to client need are available in a variety of formats.

Reading Barbara’s recounting of her own professional journey, her commitment to, and enthusiasm for, meaningful work in service of clients, reminds me of the ah-ha moment I had when I first joined the Academy of Family Mediators in 1991. To be in association with a body of interdisciplinary professionals, all of whom shared the value of commitment to the needs of the clients in a system that measured success by the clients’ standards, and none other, was major change in my involvement with professional associations. Having come to know Barbara in the context of our mutual commitment to the first stage rocket of conflict resolution, it is a pleasure now to explore the commonalities of the booster model.

As we have informally discussed, through our previous correspondence, the concept of “collaborative mediation,” I confess to feeling somewhat conflicted. On the one hand, I value Barbara’s commitment to process goals with which I am in total agreement and I have always enjoyed our interaction when conferences bring us together. On the other hand, I share the concerns of Stu and Pauline with respect to protecting the birth and development of the Collaborative Law model. The conflict arises over the use of the term collaborative (with a capital “C”) as a name for a type of mediation. As the very syntax, vocabulary and definitional terms associated with Collaborative Law are being developed (literally as we write these perspectives), I have a concern about anything that would create ambiguity as opposed to clarification.

Collaborative Law has not yet become such a part of the dispute resolution lexicon as to be known to professionals and consumers alike. So my own assessment of the use of the term as it may apply to mediation starts with the question: Does this term coined to apply to the described process describe something sufficiently distinct to justify the use of term (capital “C”) Collaborative? In contrast to the process concept that Stu created—a process for which there was no existing model—the type of process described in Barbara’s article has a generic name that accurately describes the structure for the model, namely “mediation”. The role of collaborative lawyers as client representatives may be stylistically different from any other mediation with clients represented by counsel, but I do not see that it is structurally different from the typical mediation model. In that sense, the use of the term has more potential to confuse the uneducated consumer base than to clarify it.

Stu’s creation plugged a very major gap in the dispute resolution continuum. When the two choices consisted of litigation at one end and mediation at the other, the vacuum between the two cried out for a hybrid. I am concerned that, at least at the present time, the generic use of the term “Collaborative” could cause more harm to the work necessary to fully develop this model, than it adds value to clarifying the consumer’s choices.

I say I’m conflicted because I also admire, respect and enjoy the kind of creative thinking that caused Barbara to see the symbiotic relationship between Collaborative Law and Mediation, and I am reluctant to do anything to discourage that type of energy. In the final analysis, it is also incredibly exciting to participate in so grass-roots a movement that we can even be having these types of conversations about something that will evolve into a major model for professional service that was not created by the state or federal government. Little did I conceive, as a new and young lawyer in 1971, that in the course of my professional life, I would have an opportunity to join a revolution that was anything but hyperbolic.

©2003 Chip Rose

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By definition, a CFL case requires that a husband and wife are each represented by counsel who have been trained in interest-based negotiation, the choreography and structure of CFL, and interpersonal conflict resolution skills. Counsel and clients execute a contract, often called a Participation Agreement, which mandates that both attorneys are precluded from representing their respective clients in the event the case reaches impasse or in the event either party chooses to withdraw from the CFL process. The roadmap of the process requires that the participants focus on the interests of both clients, gather sufficient information to insure that decisions are made with full knowledge, create a full range of options, and then choose options that best meet the needs of the parties. The structure, along with the skill of counsel, creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.

In some jurisdictions, the CFL case is not filed until all issues are resolved and the marital or separation agreement is executed. In other jurisdictions, especially those with long pre-divorce waiting periods, by agreement, one lawyer files early in the case in order to begin the statutory waiting period. However, collaborative counsel is stayed from actually proceeding on contested issues in court during this period. Temporary issues of support and parenting must be resolved in the CFL process without filing preliminary motions. In unfiled cases, rather than having Temporary Restraining Orders to preserve the marital estate, clients rely upon the Participation Agreement’s mandate that assets remain intact while the process is pending. In order to circumvent “fast track” requirements, some jurisdictions have adopted a local rule of court to provide for stays of varying length. [3] Texas is the only state that has adopted a Collaborative Law statute which allows for a stay of up 180 days. [4]

A. The Role of Associated Professionals
In some areas of the United States, and particularly in Canada, CFL includes associated professionals to enhance the co-operative approach. The expertise of neutral financial planners and mental health professionals can help provide critical information needed to focus divorcing parties on the range of options available at the termination of a marriage. Additionally, mediators also may have a role in CFL. In the event of impasse, mediators may be used to assist to break impasses with focused sessions that include counsel, parties and the mediator.

Financial planners have becoming increasingly sensitive to divorce-related financial issues. One organization, The Institute for Certified Divorce Planners, focuses on training and certifying financial planners, CPAs and attorneys on divorce related financial issues. Financial planners can help in the CFL process by creating budgets, providing alterative spousal support scenarios, and reviewing property divisions by taking into account assumed rates of return. Planners can provide long-term projections to allow a husbands and wives to examine how settlement might impact each over a period of time. Mental health professionals can assist as Child Specialists and as Coaches. Child Specialists help parents focus on the needs of their children. While most divorcing parents worry about how divorce will affect their children, in the often consuming divorce process itself, the concerns and interest of the children are often eclipsed by other immediate, pressing demands. [1] The Child Specialist is generally retained as an expert neutral. In most cases, Child Specialists meet with children and parents to gather information regarding their interests and concerns. The Child Specialist is in a unique position to provide assistance to the family. Working with the parents, the Child Specialist is able to inform parents about common reactions children have to divorce, discuss developmental and practical considerations important to making parenting arrangements, and assist parents in developing realistic parenting time plans.[6] Additionally, parents who have had positive experience with the Specialist have a qualified neutral to provide assistance as circumstances and the needs of the children change with time.

Mental health professionals may also serve as Coaches for the parties. Generally, two gender-matched divorce Coaches are retained. That is, husbands have a male coach and wives a female coach. The goal of coaching is to help clients manage their anxiety and conflict so that they can effectively communicate and work with each other in the CFL context, and beyond. Coaches help clients learn new communication, problems solving and relationship skills. [7]

Associated professionals can bring significant value to the CFL case. While at first blush, what appears to be a “cast of thousands” approach to divorce seems cumbersome and cost-prohibitive, the price of dealing with financial and psychological concerns directly is often minute when compared to ending a marriage with unresolved, festering issues. These unresolved issues often take on a life of their own in the post-decree period. In fact, in one collaborative model, known as Collaborative Divorce®, the model itself requires that the entire team be in place.

This article will focus on the lawyer’s role in CFL as it has primarily evolved in the United States. In the most cases, lawyers are the only collaborative professionals involved and associated professionals are retained on an “as needed” basis.

B. The Paradigm Shift
Paradigm has been defined as “an entire constellation’ of beliefs, values, techniques and so on shared by the members of a given community.” [8] In order to understand the dynamics of a CFL case, a paradigm shift is required. The shift begins with a critical examination of the adjudicatory model. In the vast majority of instances, the adjudicatory model simply does not meet the conflict resolution needs of couples terminating their marriages. The adjudicatory model is grounded in a system in which evidence is presented to a trier of fact based upon civil rules and rules of evidence. Family law shares the same basic adjudicatory structure as criminal cases, commercial civil disputes, constitutional challenges and negligence actions, yet family disputes are inherently different. Unlike the plaintiff in a negligence action who sits across a courtroom from a stranger-defendant he will never see again, the plaintiff-father in a divorce action sits across a courtroom from a defendant-mother with whom he will, by necessity continue to have contact, and with whom he will need continued cooperation and good-will in order to effectively parent children. The court system is by its nature adversarial and contrary to the fostering goodwill and cooperation needed in continuing parenting relationships.

A client often comes to a lawyer and requests that a divorce action be filed “so that a judge can hear the evidence and “do what’s fair””. The client rarely comprehends that he is about to enter a system in which a judge might determine “fair” to be quite different than the client’s expectations. The client doesn’t anticipate a system in which he might wait in the hallway while the lawyers and the assigned judge discusses his fate, and he is surprised and disappointed to find a system in which cases are often heard piecemeal by courts.

CFL provides a structured approach to divorce that addresses many of the concerns not addressed by the traditional court system. CFL is the formalization of a new settlement model. Inherent in the paradigm shift is the requirement that lawyers learn new models of communication and conflict resolution in order to meet the needs of clients. Lawyers in the CFL case focus on the nature of the conflict and work within a very specific structure to manage the conflict and transform it into collaboration. The CFL process replaces Rules of Evidence and Procedure with specific protocols and choreography. Clients are given significant opportunity to own both the process and its outcome.

The lawyer in the CFL process helps the client to articulate his or her interests, assists in the creation of a broad spectrum of options to meet the interests articulated, assists in evaluating those options based upon several criteria, and helps the client focus on the consequences of choosing various options. A part of the evaluation process is determining how an option compares with a court-generated outcome. That is, if the client chose to use the court system, how does the range of possible court outcomes compare with options created in the CFL context. The CFL negotiation, in a sense, takes place in the “shadow of the courthouse.” Court settlement ranges are, however, only one set of options available. Clients are encouraged to look at the needs of their family and the reality of their own situations. The brainstorming process and the assistance of counsel allow clients to arrive at creative and imaginative solutions.

C. The Collaborative Family Law Choreography
A shared choreography provides counsel with a road map of the process and creates predictability and an atmosphere for efficient negotiations. The basic choreography entails the initial lawyer-client consultation, preparing the client for a meeting with both lawyers and both clients (the four-way meeting), the attorney- to- attorney consultation to create an agenda and prepare for the four-way meeting, and the four-way meeting. Four-way meetings generally take place in two hour sessions in which the majority of the CFL substantive work is done. In most cases, following the four-way meeting, counsel and client each meet to discuss the previous meeting and potential issues and concerns for the upcoming meeting.

The choreography begins with the initial contact with a client. The client is often in a state of fear, panic and confusion in the first contact with a domestic relations lawyer. The client is usually fixated on the substance of the impending divorce. Questions concerning custody arrangements, the duration and amount of spousal support, and child support calculations are uppermost in the client’s mind. What is rarely appreciated is that the process choices, the manner in which a couple goes about terminating the marriage, may have as much, if not more impact on the substance issues and how the termination of the marriage impacts the family both during and after the divorce.

Because process is so important, at the initial conference with a client, the process options to terminate the marriage are discussed first. This discussion assumes a client is in a position to make choices and that a case has not already been filed and irretrievably placed on the litigation track. Prior to discussing process options, counsel first inquires about issues of domestic violence and substance abuse. While such an inquiry should be standard in all domestic relations cases, it is especially important in cases in which a client may choose CFL. As in mediation, a client in the CFL process is directly involved in the negotiation. Issues of duress and personal safety must be addressed. There is some question as to whether an abused spouse should “be allowed” to access CFL. The critical and determining factor is whether the client has the capacity to knowingly choose a process with a full understanding of the consequences. If a client chooses the process, the client must do so with a clear understanding of the consequences of a potentially confrontational situation and the attendant safety concerns. If CFL is chosen, in these cases, it may be appropriate to insist upon coaches or other mental health intervention.

The process options range across a spectrum from the least amount to the most amount of outside intrusion into the matters of the family. The least intrusive is a couple reaching its own agreements “at the kitchen table,” with no outside assistance. The next option is mediation whereby a mediator assists a couple by facilitating their negotiation. Mediation is usually most effective when both husband and wife consult with lawyers during the mediation process. The lawyer’s role in the mediation process may vary from community to community. CFL falls next in the spectrum of process options. In the CFL case, lawyers are a significant part of the process and are more integrally involved in generating options, risk analysis and facilitating the negotiation. The next process option is traditional lawyer- to- lawyer negotiation, and the final option is litigation.

Prior to a party choosing the CFL process, the lawyer and client review the CFL Participation Agreement. Although Participation Agreements vary, the Agreement generally contains certain fundamental provisions. There is a core provision that the lawyers agree not to participate in court intervention in the case. In the event the case reaches impasse, or a party determines that court action is necessary, each party must retain new counsel. Unless there is a need for emergency relief, there is a 30 day waiting period before a party can go to court. The parties also contract to provide complete, honest and open disclosure of all relevant information. The standard is that there must be full disclosure, whether the information has been requested or not. There is an affirmative duty to disclose and failure to do so will result in a termination of the process. There is often a temporary restraining order type provision that requires that health and life insurance policies and accounts remain undisturbed during the pendancy of the CFL negotiations. The Participation Agreement also includes a provision that the parties may choose to jointly retain an expert, such as a business valuation specialist as a neutral, and that the expert cannot be called to testify absent both parties specific waiver of the neutral expert provision.

The issue of full and voluntary disclosure is often troubling to lawyers first exposed to CFL. Lawyers are suspicious of a process that does not include formal discovery, in spite of their knowledge that the formality of interrogatories, motions for production of documents and depositions does not provide a guarantee of full and complete disclosure. In reality, most experienced lawyers admit that the traditional discovery process is often burdensome and exhausting. Countless interrogatories and requests for production of documents are frequently met with haphazard and incomplete responses. Motions to compel and motions for sanctions take significant attorney time and often deplete fee retainers before an attorney even begins the substance of the case. This cat-and-mouse game is unsatisfying and extremely frustrating for lawyers and clients. Additionally, formal discovery, even at its best, often doesn’t uncover well hidden assets.

The information-gathering part of CFL provides the underpinnings of the entire process. Without information, options are limited and participants are not in a position to create rich, meaningful settlements. In the CFL process, discovery is not dead, it has simply been renamed, streamlined and packaged in a way that finally makes sense. In the CFL context, a party that has concerns or questions about hidden assets, misspending or marital trace issues has the same, if not more, opportunity to obtain records and information. To ease concerns, parties may execute affidavits of full disclosure at the conclusion of a case.

The core CFL work is done in four-way meetings. Prior to the four-way, each attorney meets with his or her client to prepare for the meeting. This preparation includes assisting the client to examine interests. Clients often arrive at the initial consultation with positions, either hardened or otherwise. For example, fathers often come into the divorce process with the position of 50/50 timesharing of children and mothers often come into the process with a hardened position of retaining the marital residence and stability for the children. The lawyer in a CFL case works with a client to elicit the underlying interests behind positions to ultimately allow the creation of numerous options that might meet those interests. Clients are provided with a context to help them differentiate interests and positions.

Additionally clients are provided with the framework for collaborative communications. The lawyer and client may begin to talk about what information will be necessary prior to a couple being able to work to generate options to resolve issues.

After the lawyer-client preparation and prior to the four-way meeting, the lawyers consult to set the structure of the upcoming meeting and to discuss and establish agendas. This includes a process agenda focusing on the most effective and efficient way to negotiate the case, and a substance agenda to discuss temporary issues and a framework for gathering and obtaining valuation information. These agendas are based upon the discussions each lawyer has had with their respective clients. Additionally, with the permission of their clients, the lawyers discuss “hot spots” and areas of particular concern that have been raised by each of their clients. The goal of the relatively brief lawyer/lawyer consultation is to insure that the four-way meeting addresses the client’s concerns and proceeds smoothly.

The four-way meeting is the heart of the CFL process. The initial four-way meeting sets the stage for a problem solving atmosphere. The clients find comfort in the knowledge that they have both been similarly briefed by counsel. Both are prepared to articulate their interests and goals. Both know that they have been given the same communications rules and both are aware that the lawyers will provide a safe framework in which they can negotiate in their own best interests. At the meeting, the Participation Agreement is used to anchor clients into the process and obtain a comfort level at the first session. The Agreement is reviewed and discussed to insure that clients are fully apprised of the basics of the CFL process, that the lawyers are committed to assisting them to reach meaningful resolution in their case, and that the lawyers will not take the case to court in the event of an impasse. After the Participation Agreement is executed, the lawyers may review communications ground rules for the four-way meetings. These ground rules, often called “Process Anchors” are communications hints for clients to remember at 4-way sessions. These “anchors” include reminding clients to focus on the impact of the way in which they communicate during the negotiation process. They focus clients on recognizing the futility of arguing by asking each party to identify his or her own perspectives, interests and beliefs and listen for those of their spouse. They remind clients, as they are about to say something sarcastic, caustic or damaging, to analyze if the comment will help them to meet their interests. [9]

D. What Makes CFL Different?
Lawyers unfamiliar with CFL often say, “I negotiate most of my cases anyway. How does CFL differ from two reasonable lawyers negotiating a case?” The differences lie in the fundamental concepts of client empowerment, the impact of having lawyers and clients sit down with a shared choreography and the impact of negotiation when the litigation club is removed from the negotiation table. Metaphorically, for the participants in a CFL case, the lawyers and clients are sharing a boat that they all must row together in order to move forward. They know that they will hit choppy water, and there is comfort in knowing that they have equipment aboard to deal they encounter difficulties. Most important, the clients have the biggest paddles on the boat. They control where they go and how and when they get there. If they choose to abandon the boat, the “court” boat will tow them and with that tow, comes a loss of power. There is shared mutual advantage to staying the course.

Giving up the “court club” is often a frightening concept to lawyers. They worry that in so doing so they will have to abandon a client who has sought assistance at a vulnerable time. With skilled professionals, however, impasse is rare. Systems are in place to assist when a CFL negotiation breaks down. For example, in the San Francisco area, the Participation Agreement includes a provision for a limited purpose private judge. [10] It allows a private judge to assist in resolving limited impasse issues. In other cities, impasse mediation is used. Alternatively, the members of a practice group designate a rotating “mentoring panel” to assist in resolving impasse through consultation.

For a couple involved in terminating their marriage, the choice of CFL is the beginning of client empowerment. Clients assess the value of a an efficient process to gather necessary information, a communication model that requires that they listen to one another, and lawyers committed to producing a full range of options in order to reach a meaningful settlement. Although for many, the prospect of entering into a process that might mean lawyer withdrawal is a concern, the benefits of the process outweigh the concerns. Clients have the opportunity to assess the circumstances, evaluate options, understand the consequences and choose a process.

E. Conclusion
There are over 75 CFL practice groups in the United States and Canada. [11] One of the most successful practice groups is the Collaborative Family Lawyers of Cincinnati. The group was founded in 1997 and there are now 66 family lawyers trained in CFL. [12] Hundreds of CFL cases have been completed, with relatively few impasses. The group meets monthly to reinforce the new paradigm and discuss issues or concerns raised by ongoing cases, and by cases in progress. The experience of the Cincinnati family bar has generally been positive. CFL provides an opportunity for both lawyers and clients to engage in what has come to be known as “the good divorce.” It is an opportunity worth exploring.

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Our adversary society has become an increasingly violent society. Violence is glorified in our media, in video games, toys, books, newscasts, T.V. programs, and even in our playground games. Our citizens are the most heavily armed in the world and our crime rate is one of the highest in the world with extremely violent crimes being committed by younger and younger children. We have the highest rate of prison population per capita in the world and are one of the few remaining western nations still executing criminals. Underlying our violent society is the belief that have been held by the majority opinion in most groups of people throughout the history of the world, that my group is somehow better than yours, that one race or ethnic group is superior to another, or that one religion or belief system is more true than another. In its most extreme, these dogmatic beliefs are used to justify extreme acts of violence: inquisitions, crusades, bombings and “holy wars”. It is these beliefs that have lead to dozens of incidents of organized and state sponsored, or enabled, genocide; and most of the major wars during the history of the human race.

It is apparent that we desperately need to find a better way of relating to one another, and that the broken aspects of the world’s relationships between countries are reflected within our own individual relationships. When Mother Teresa was receiving her Noble Peace prize she was asked by a member of the audience, “What can I do to promote world peace?” She responded: “Go home and love your family.” Another time in another context she told the audience to “Sweep off your neighbor’s porch.” She was emphasizing that world peace can only be accomplished by the repair and maintenance of our individual relationships, starting with the members of our own families. Individuals are not aggressive and violent by nature; violence is a learned response to the denial of our basic human needs, for love and security.

The good news is that within the last few years there has been an explosion of new approaches to the resolution of conflict within the family. The adversary system is now regarded by most far sighted individuals as an outdated and ineffective method for resolving conflicts within the family. Most of the time the adversary system makes the problem worse, as the members of the family are forced to talk trash about the other member to “win” their case and obtain custody of the children or a better financial settlement. One new method of dispute resolution is collaborative law.

Collaborative law allows the search for truth to be the primary focus of the attorney/client relationship. The parties pledge to engage in full disclosure, consequently, the clients must agree to waive confidentiality with respect to relevant evidence disclosed by the client to the attorney. Once all relevant information is known to both parties, the collaborative law participation agreement provides that the attorneys’ responsibility is to engage in full disclosure and seek a fair and equitable settlement of the issues. The traditional role of advocating for a client to the detriment of the other party is eliminated. The clients can then make the decision to settle the issues. As Rachel Felbeck and Marilyn Endriss stated in their article written for the Washington State Access to Justice Seminar; “While collaborative law is not for every lawyer, or for every client, or for every case, it is a viable alternative for many who seek to end conflict and reach resolution through means other than costly litigation.” The practical application of collaborative law has been described by Ms. Felbeck and Ms. Endriss, and by other writers, but the most important benefit of collaborative law is how uplifted you will feel. Collaborative law is based upon principles which come from love, while the adversary system is all about fear and the emotions that fear produces.

Love and Fear

There are two main sources of your emotions. One is fear, and all the emotions that come from fear such as hate, jealousy, envy, anger, resentment, sadness, and doubt or self pity. The other is love, and all the emotions that come from love such as compassion, joy, kindness, and feeling connected to the world. We experience both emotions, but the one that dominates in the lives of most people is fear.

Fear based emotions dominate to an even greater degree the lives of individuals who are experiencing the emotional trauma of primary relationships being dissolved or modified. The adversary system is not designed to deal effectively with emotional issues and when former intimate partners are forced into court to fight over money or children the attitude is often fostered that one is wrong and the other right. No one wants to be at fault for the divorce so both partners try to cast the blame onto the other, or they accept and internalize the blame, casting themselves as the victim. The adversary system promotes this process.

In the adversary system there is a need to win. The need to win is a need of the ego. Ego creates the duality of winners and losers. The adversary system is by design a system based upon winning. The need to win creates fear based emotions and perpetuates the suffering of the client. In collaborative law the need to win has been eliminated. The pursuit is to find common agreements that are fair and equitable to both parties, and in doing so, the qualities of love that once existed in abundance within the former intimate relationship are recognized and honored. Both individuals learn to find other ways to love and respect their former partner. The adversary system promotes the fear based feelings within the former intimate relationship, those feelings that precipitated the dissolving of the intimate love relationship, and in doing so, the adversary system adds to the problem that already exists. By making one party a winner and the other the loser, or by judging one or both parents guilty of bad behavior, the adversary system fails to resolve the problem. Collaborative law promotes the idea that both individuals deserve to be treated with love and respect, and that if the intimate relationship must end, it is more important to honor the loving aspects of that relationship, rather than to emphasize the aspects which came from fear.

This does not mean that destructive behavior is ignored, and there are times when restraining orders have to be sought for the protection of children or the more vulnerable spouse, but once the request is made within the adversary system the litigants often have feelings of judgment or anger. Anger cannot dissipate anger. If you react to anger with anger you only create more anger. The adversary system feels like a reaction based upon anger. The loser is made to feel responsible for the failed relationship; the loser is made to feel guilty, sorry, or sad, while the winner’s ego feels superior.

Destructive behavior is the excuse for the condemnation, for the judgment, for the anger that the parent not engaging in the behavior feels towards his or her former intimate partner. The adversary system attempts to force parents into proper behavior around their children while the collaborative system allows the parents to change their own behavior. We cannot get rid of destructive behavior in others by decreeing it to be so. Each individual is responsible for his own behavior. We cannot force another to engage in behavior that is love based instead of fear based. Each person must be responsible for his own healing.

Emotional Healing

Destructive, fear based behavior is the result of the emotional poison of the individual engaged in the behavior. This poison is diluted when it is washed with the energy of spirit as expressed through love based emotions, but when destructive behavior is responded to with anger, jealousy, bitterness, hate, or any other fear based emotion, we add our own emotional poison to that which we are responding to and we simply make it worse. We increase the emotional poison within both individuals.

Collaborative law gives the individual the opportunity to fix his own problem. It does not take this responsibility from him. Collaborative law promotes each individual’s responsibility to heal their own emotional body. The adversary system does not promote responsibility. It is inherently judgmental. If one half or both halves of the former intimate relationship have engaged in destructive behavior based upon some addiction or mental illness, then the goal within the collaborative system is to identify the problem in a non judgmental manner and offer the individual engaged in the destructive behavior assistance and guidance, so that the individual with the problem can make the choose to clean his emotional garbage or to continue to live in suffering. Collaborative law gives individuals the opportunity and permission to heal their emotional bodies and stop engaging in self destructive behavior. The adversary system avoids responsibility.

Collaborative law is completely responsible because it promotes love and healing by resolving conflicts and treating each participant with respect and dignity. Collaborative law empowers the individual and creates responsibility because the choice to agree on a fair and equitable settlement is a choice made by the participant. Thus, parents tend to choose the responsible choice for their children and are more willing to co-parent them. They tend to choose the expression of love in their lives and they are awakened to the destructive power of their fear based emotions. Once awakened, they can make the responsible choice to avoid the harmful expression of fear based emotions. Collaborative law allows each individual to be responsible for their own behavior.

The Healing of the Emotional Body

Emotional wounds are healed in the same manner as physical wounds. When we have a cut that has become infected we must first cut open the wound and let it drain, then apply medicine to kill the bacteria causing the infection, then cover it and give it time to heal. With an emotional injury, like a physical wound, the injury must first be cleaned. We use the truth as a scalpel to cut open the wound. An acknowledgement of the truth by the emotionally injured person, no matter how painful that truth may be, opens the wound and allows the negative feelings to dissipate through expression in a safe environment. Once the individual begins to feel better the medicine of forgiveness can be encouraged. This does not mean that we condone the behavior of the perpetrator, but we do recognize that the behavior was caused by his emotional poison. We can teach forgiveness by application of the third healing element, self love. Forgiveness of others happens when the injured party first forgives himself. Self love is the time that we give an emotional wound to heal, and it is what is necessary before the individual can forgive, first himself, and then everyone that he perceived injured him at some time or another. Without self love the injured will eventually fall back into a place of self blame and victimization and the emotional injury will again fester into an infected wound. Only by the forgiveness of the perpetrator of the emotional injury can the injury be completely healed.

With the application of these three principles; the truth, forgiveness, and self love, any emotional wound will be healed. The emotional body must be healthy enough to allow the spiritual essence of an individual to become stronger, which in turn allows an individual to grow in spirit, to evolve spiritually, to become one with God. This is the foundation of all religions in their infancy stages, before ego contamination, and all spiritual quests.

A New Paradigm of Family Law

Family law attorneys need to realize that you are not your victories. You can enjoy competing, and have fun in a world where winning is regarded as “fun”, but “winning” in family law is inappropriate. It is not about winning. It is about responding to people who are expressing fear based emotions with compassion and understanding; listening to them and really understanding their emotions; then creating an environment in which they are made to feel respected and understood so that they can start the process of healing. Let go of your need to win. That is your ego’s fear. You ego needs to feel important, superior to everyone else and “winning” feeds your ego. When you give up your need to win, you also give up your need to be right. Ego pushes you in the direction of making other people wrong. This is the source of a lot of conflict and dissension. When people are made to feel wrong or at fault more fear based emotions are created and we fail to serve each other.

Collaborative law is about service, to your own client, but also service to the other half of that relationship, to the relationship itself, and to the world. There is no right and wrong in collaborative law, there is no winner and loser. When we promote “winning” to our clients we create more fear based emotions, both within our clients and ourselves. When we emphasize fairness, safety, respect, and healing, we lead our clients back to love, to their true selves.

Family law attorneys, who have made the commitment to practice, as much as possible, in the collaborative manner, tend to be already focused on the expression and celebration of spirit through them. More likely than not, they tend to see their clients and the other party and attorney in a nonjudgmental manner. They feel love based emotions more often than fear based emotions and have awakened to the knowledge that love based emotions produce happiness, contentment and peace, while fear based emotions produce unhappiness, agitation, and war. There is a circle of family law lawyers who understand that with each other they can relax and simply engage in a search for the truth in order to reach a fair and equitable settlement that everyone can live with. Often nothing needs to be said between these attorneys. They understand and know that the other attorney will engage in full disclosure and encourage their clients to seek a fair and reasonable settlement without resorting to litigation. These are the attorneys who are at the forefront in the quest to reform family law, to take it out of the adversary system, and to practice collaborative law, mediation, and other conflict reducing techniques. But because family law remains within the adversary system, these attorneys must occasionally engage in litigation. When this happens to me I try to not take any thing said or done personally. I know it is not about me, and often it is not even about my client.

When responding to a family law problem which has already been placed within the adversary system, ask yourself if it is appropriate to respond in a collaborative manner. Before asking your client to prepare declarations which offer counter condemnations to the court, ask yourself if you are able to meet personally with the other party or his attorney prior to any hearing. Determine if the case can be removed from litigation to allow the settlement of issues without litigation. Collaborative law in its purest form requires that there be no litigation and the attorneys representing both parties are required to withdraw if either side wants to go to court. But collaborative principles can be utilized in the settlement process even when litigation is already pending. There is always time to ask your clients to consider responding with love to allegations and blame. There is always the possibility that you can direct your clients out of the darkness of fear and into the light of love. It is your presence within their lives and the love and respect that you give to them that will give them the strength to respond with love. Your love gives them permission to also love. Call the other party into your office or visit them at their home. Connect person to person, listen and avoid judgments. Practice understanding. Ask them to accept responsibility for their own behavior.

Lawyers and service providers within family law may be compassionate individuals, but the nature of the adversary system requires blame and judgment. It is sometimes difficult to not take these judgments personally. It can be difficult to remain in the path of love when there is judgment and condemnation all around you. Just remember this: what you condemn, you attract into your life. Fear, blame and judgment cannot be reduced by condemning it. Fear can only create more fear. Only love can heal the emotional body, and in the final analysis it is only self love, the love that comes from within, that can heal that person’s emotional body. You cannot heal your client’s emotional body. You can, however, facilitate its healing by providing a safe, nonjudgmental, loving environment which will allow the client to heal their own emotional body. Collaborative law can more effectively provide that environment and promote the healing process.

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Now Ms. Gesky, 41, is divorcing again, determined “to get past the emotion and not make what is already terrible worse.” She also wants all three of her children, two from her first marriage and one from her second, to be spared the acrimony.

Her husband, Tom, 36, does not bear the same scars. But he, too, hopes for a divorce where the couple “can care for each other afterward, like the friends we once were” and congenially raise their infant daughter.

With those goals in mind, the Geskys decided to try a process called collaborative divorce. Invented more than a decade ago by Stuart G. Webb, a burned-out Minneapolis matrimonial lawyer, it is gaining in popularity around the nation and has recently made its way to New York State .

On a recent evening, at a four-way negotiating session in White Plains with their lawyers, the couple sat shoulder to shoulder on adjoining chairs. It was a peaceful tableau. They didn’t recoil from each other’s touch. Nor did they bicker or fall silent at moments of disagreement.

Already they had made progress toward decisions about selling their house, dividing their pensions and designing a joint child custody arrangement.

They were considering their daughter’s changing needs: nursery school soon, later ballet or bassoon lessons, boyfriends, college. The lawyers chimed in with what-ifs. A stranger in the room could not have told which lawyer represented which client.

“I’ve lived through the process of a contentious, adversarial, drawn-out, money-hungry divorce, and it’s devastating,” Ms. Gesky said. “This time I don’t want that pain. I want clarity and release.”

Collaborative divorce is now available in 35 states and much of Canada . According to Mr. Webb, who simultaneously gave up litigation and became a Buddhist, 4,500 lawyers nationwide have been trained in the protocol, which halves the legal costs of divorce. New York, where state laws make dissolving a marriage costlier and arguably nastier than anywhere in the nation, is a relative newcomer, with collaborative lawyers first taking cases about two years ago.

In some ways, the method resembles mediation in its problem-solving approach. But rather than a neutral mediator, each party brings a lawyer to the sessions, as advocate and adviser. But the very format changes how lawyers behave.

“We are by nature competitive,” said Barry Berkman, who organized the first group of collaborative divorce lawyers in New York City and Westchester County after learning about the process at a California symposium. “Otherwise we’d be botanists.”

Most matrimonial lawyers measure success by who won, and for how much. “This is different,” he said. “Success is a resolution that works for both parties.”

The cornerstone of the process – and its most controversial element – is that the two lawyers sign a pledge to withdraw from the case if either of their clients decides to go to court. This gives the lawyers an economic incentive to leave adversarial habits behind. It also encourages clients to stay at the bargaining table, since bolting means starting over with new counsel.

Collaborative divorce also requires a full disclosure of assets and respectful behavior at all negotiating sessions. Yelling, table-pounding, threatening and stalling are against the rules.

The settlement is shaped by figuring out what works for the couple. One husband split an inheritance with his wife to break a logjam, although he was not required to by law. One wife gave ground on weightier items because her husband agreed to continue changing the screens and storm windows every year.

Because this is not how most lawyers think, Mr. Berkman said, those practicing collaborative divorce generally meet in the equivalent of support groups. The 40 lawyers in New York City and its northern suburbs gather monthly to discuss their shared cases.

At one recent meeting in White Plains , Amy Carron Day and Marc Fleisher figured out how to lower the decibel level by beginning sessions with safe topics and coaching the husband to show more support for his quick-to-anger wife. At another meeting, Robin Carton explained to Neil Kozek that her client felt he was “saber rattling” when he made reference to what might happen if they went to court, a tactic collaborative lawyers are supposed to leave behind.

There is no nationwide tally of how many cases have been settled this way, and leaders of the movement are only now talking of the need to collect systematic data. But they point to the dramatic experience when collaborative divorce was introduced in Medicine Hat , in the Canadian province of Alberta .

All 29 of the lawyers who regularly practice matrimonial law in Medicine Hat, population 51,000, have now been trained in the collaborative process, according to Janis Pritchard, the first president of the collaborative lawyers’ association there, who describes herself as a former “barracuda litigator.”

Within six months of the training of half the lawyers in 2000, the filing of motions fell by 50 percent. By 2001, after the next group was trained, filings had fallen an additional 25 percent. Collaborative techniques are now being tried in Medicine Hat by corporate, real estate and trust lawyers.

Most in the New York group continue to do litigation, mediation and collaborative divorce. But many do less and less litigation, and some have abandoned it entirely.

“I can’t bring myself to go that route anymore,” said Katherine Eisold Miller, Mr. Gesky’s collaborative lawyer, who was a big-firm litigator for 15 years. Ms. Miller’s career change has been eased by her background; both her parents are therapists. “This feels very natural to me,” she said.

As a dispute resolution process, collaborative divorce shares the so-called interest-based bargaining techniques of mediation. But many lawyers who practice mediation say that it is not suitable for marriages with a “power imbalance,” since the parties are generally in the room without advocates and hire lawyers only when it is time to draft and submit an agreement.

Mr. Berkman offered several examples of power imbalance: A wife of 25 years who had always said “yes, dear” about money matters. A guilt-ridden adulterer willing to “give away the store.” A jilted spouse “so depressed she can’t think straight.” Ms. Miller cited her own divorce, where mediation failed, she said, because her ex-husband couldn’t stand that she “knew the lingo” and he didn’t.

Even the matrimonial lawyers who have reservations about collaborative divorce prefer it to mediation. The cynical explanation might be that mediation, which is also done by mental health professionals, takes business from lawyers.

But Ann Diamond, a litigator at Sheresky Aronson & Mayefsky in Manhattan , said that she was “dead set against” mediation because anguished husbands or wives need “someone to stand behind, someone to be the heavy.” (Mediators permit each party to have a lawyer with them, but most couples forgo the extra expense.)

Ms. Diamond, and others, worry that the collaborative lawyers’ pledge not to take a case to court could in some cases actually run up a client’s bill. Let’s say the husband decides to go to court. The wife, Ms. Diamond said, is then also forced to start from scratch.

While more than 90 percent of divorce cases are uncontested, those that wind up in litigation generally cost two to three times as much as a comparable case handled collaboratively, according to lawyers familiar with fees for both methods.

Richard A. Abrams, a New York City litigator who has also joined the local collaborative law group, cited this example: A collaborative divorce that required half a dozen two-hour negotiating sessions, no outside forensic experts and a draft agreement would cost a couple about $15,000 in Manhattan. In litigation, with a routine number of status conferences in court but no complicated motions, discovery or trial, the same divorce would cost at least $30,000.

Lisa Headley, with a 20-year marriage and a 10-year-old daughter, was “so mad and hurt” when her husband, Brian McCormick, asked for a divorce that her first instinct was revenge. One visit to a lawyer whom Ms. Headley, 45, described as “a barracuda” slowed her rush to court.

Then she consulted a mediator but decided “you have to be very strong and know exactly what you want, and I was a basket case and didn’t think I could do that.” Instead, she hired Mr. Fleisher for a collaborative divorce. “I needed someone on my side,” she said, but not someone who was going to say, `You’re going to pay, buddy.’ In the end, I had to live with myself.”

Custody was never an issue, and the couple had no significant property to fight over. After a half-dozen sessions there was an agreement ready to be signed. Ms. Headley wanted her daughter to attend the same church each Sunday, but was persuaded that it was regular worship that mattered, not where. She kept the living room rug, but parted with the bedroom set.

“It seems so silly now,” Ms. Headley said. “But they told us it happens to everyone, so I didn’t feel like such a fool. And they kept pointing out the progress we were making.”

“I’m not saying it wasn’t awful,” she said, “but I’d recommend it to anyone.”
Divorce without Courts
By Jane Gross
Published New York Times: May 20, 2004

In traditional dispute scenarios both parties retain their own financial advisor and may be subject to a custody/access assessment. The results from financial planners may vary and in such cases, the dispute then widens to include the experts. The recommendations of the assessor may not reflect the position of either or both parties and hence their involvement may fall to conflict as well. Often, other third parties are drawn into the dispute as well.

In the CFL process, while the couple retains separate collaboratively trained lawyers, they then retain a single financial advisor and/or child expert and/or divorce coaches who form a team with the lawyers and clients. The financial advisor, child expert and divorce coaches act as consultants within a team framework. Because each party has their own lawyer though, they are assured their respective legal rights are preserved. Certainly the disposition of the lawyers is one of settlement as litigation is openly off the table. The risk of conflict is reduced in favour of improving the probability of settlement.

At issue to some persons considering CFL, is concern that they may be forced to capitulate or acquiesce on matters of importance or safety.

Firstly, no party is to be forced to agree to anything. That is why they both retain separate counsel; to protect legal rights and assure a process that addresses mutual concerns.

Secondly, either party can table contentious issues and even treatment issues. The objective is not to capitulate, but to address all issues forthrightly and develop plans to genuinely mitigate concerns.

The actual CFL process occurs in four-way meetings (clients and lawyers) and can be expanded to include the financial planner, child expert or any other consultant for that matter. Depending on the style of CFL, ancillary experts may automatically form part of the team. Various jurisdictions have developed some unique differences in approach while all the while adhering to the basic premise of reaching a settlement without the threat of litigation.

Depending on the nature of issues to be resolved, the number and durations of meetings can vary. Unlike traditional family law where meetings tend to be conducted on a schedule determined by Court process, CFL meetings are independent of Court and hence at the control of the participants. Further, because matters are never left to the discretion of a Judge, the parties retain full responsibility and control for settlements achieved.

Practitioners of CFL offer it as a more respectful way to resolve family disputes as neither side is bent on tearing down the other, but conversely, directed towards leaving relationships as intact as possible. Because collaborate doesn’t mean capitulate, issues can be addressed in a manner that maintains control in the hands of the parties. The process is thought to provide for more durable outcomes whilst maintaining the integrity of the participants. This bodes well for the children and transition to new family structures.

Separating or divorcing? Consider Collaborative Family Law for a non-litigious, more respectful solution.

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