Mar 31, 2010 Nadia Lerner
Interviewed recently by phone from her White Plains, N.Y. office, matrimony attorney Kathleen Donelli explains that through Collaborative Law, attorneys and their clients agree to reveal all information while dealing with each other "with respect, integrity and courtesy."
Their goal, notes Donelli, a partner in the law firm of McCarthy and Fingar, is "to work together to focus on interests as opposed to positions." Both attorneys and spouses sign a participation agreement confirming this arrangement.
Collaborative Law Attorneys Cannot Represent Clients in Court
If divorcing spouses cannot settle disputes, such as parenting and financial issues, and must resort to subsequent divorce litigation, their collaborative lawyers must bow out and new attorneys hired. Thus, in Collaborative Law, she continues, it is advantageous for the couple to resolve conflicting issues because their collaborative attorneys cannot represent them if the case goes to court.
Donelli explains this is because in court, attorneys representing each side have the opportunity to negotiate positions and prove their case. For example, in the litigation process, the wife's attorney may argue that in the children's best interest, the wife should remain in the marital residence until they are 18. In the collaborative process, the attorneys attempt to serve the interests of both spouses, she says, "because I know neither I nor my collaborative counterpart can resort to court intervention."
Collaborative Practice Explores Spouses' Unique Needs and Interests
Case in point, through Collaborative Practice, the wife's attorney may learn that rather than remaining in the marital residence, the wife is more concerned that the children stay in the same school district. "If arguing this in court," notes Donelli, "the court would decide the wife could stay in the marital residence, or it would be sold. In the collaborative process, parties can explore other alternatives that meet their unique needs and interests."
"You can be much more creative in the collaborative process," she adds, "when you are dealing with an interest-based negotiation rather than a position-based negotiation." Among the options in this situation, the marital residence can be sold and a less expensive residence purchased in the same school district. Another possibility, the wife can keep the marital residence while trading off to her spouse his interest in the home for another asset of similar value.
Collaborative Divorce Uses Team Approach
To guide spouses through the divorce process and help devise a parenting plan where applicable, Collaborative Divorce utilizes a team approach that includes mental health and neutral financial professionals and perhaps a child specialist. A neutral financial accountant might help value businesses or aid the spouses with their budgets, says Donelli. A child specialist would work with both parents and children to achieve the best co-parenting plan following the divorce.
First practiced in 1990 by Minnesota family lawyer Stuart Webb, Collaborative Law has since grown in popularity nationally and throughout the world. According to the International Academy of Collaborative Professionals tens of thousands of attorneys worldwide have been trained in Collaborative Law. In the United States, it is practiced in virtually every state.
When meeting with potential clients contemplating divorce, Donelli informs them of their options that include mediation, Collaborative Law and court-based litigation. Explaining the difference between Collaborative Law and mediation, Donelli says in mediation, spouses retain a neutral mental health professional or attorney who work with both to negotiate a fair and reasonable settlement of the parenting and financial issues.
In addition, it is recommended they hire their own lawyers with whom the mediator can consult. Unlike Collaborative Law attorneys, these lawyers can represent the divorcing couple in subsequent court action.
"In most cases" she says, "clients will choose an alternative to court-based litigation in the form of mediation or Collaborative Law. I think more clients would use mediation and Collaborative Law if it weren't for their spouses." If the spouse doesn't agree to either conflict resolution process, they will opt for traditional court action.
As to how long it takes to resolve cases through the collaborative process, Donelli says in her experience, some have taken only three meetings while others as long as two years. "It's really a matter of how long it takes the spouses to identify the issues and their interests and come to a negotiated agreement."
Although Donelli admits she could earn substantial fees through court-based litigation, she suggests her clients first try the collaborative process or mediation. "Going to trial and court is like a war: Each side musters their troops and positions and tries to beat the other side." In custody battles, she says, children are destroyed.
The collaborative process, she adds, helps "restructure families" with the aim of creating the least possible emotional upheaval on children and extended families. Staying out of court also hopefully reduces the financial burden of the spouses.
Reprinted with Permission by Nadia Lerner and Suite 101.com