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Dolores Gebhardt, White Plains lawyer, Alternative Dispute Resolution and Its Impact on Matrimonial Practice

COLLABORATIVE LAW:  A BETTER APPROACH TO RESOLVING MATRIMONIAL DISPUTES

 

Dolores Gebhardt, Esq.

 

McCarthy Fingar LLP

11 Martine Avenue

White Plains, NY 10606

(914) 946-3700

dgebhardt@mccarthyfingar.com

 

 

Neil E. Kozek, Esq.

 

Kramer Kozek LLP

445 Hamilton Avenue, Suite 604

White Plains, NY 10601

(914) 683-3512

kozek@kramerkozek.com

 

 

I.          What is Collaborative Law?

 

            A.        Definition

 

Collaborative Law is a voluntary process in which the parties, with the assistance of their respective lawyers, and, if they so choose, with financial and mental health professionals, make decisions together based on their understanding of their own views, each other’s views, and the reconfiguration of their family, without resorting to litigation or threats of litigation.

 

Lawyers hired for a Collaborative Law representation pledge not to go to court under any circumstances.  If the lawyers do not succeed in helping the clients resolve the issues, they must withdraw from the case.  All participants agree to work together respectfully, honestly, and in good faith to try to find “win-win” solutions which meet the legitimate needs of both clients and their families.

 

The parties agree to utilize neutral appraisers and evaluators where appropriate and to avoid subjecting their children to court-appointed forensics.

 

 

 

 

 

  1. B.           The Team Approach

 

  1. 1.            The Lawyers’ Role

 

The collaborative lawyers work as facilitators to help their clients to understand and communicate their own reality and to understand each others’ reality, as the basis for negotiating an agreement that serves them and their children.

 

  1. 2.            The Divorce Coach’s Role

 

Divorce coaches are specially trained and experienced licensed mental health professionals.  Their role is to guide the couple through divorce in ways that reduce conflict, manage emotional reactions that interfere with the collaborative process and promote a post-divorce environment that enhances the well-being of the family.

 

Coaching is not psychotherapy!  Psychotherapy involves treatment of a mental condition.  In collaborative divorce, the coach:

 

•           Identifies, clarifies and prioritizes the concerns of each family member;

 

•           Facilitates effective communication and navigates obstacles during negotiations;

 

•           Fosters effective co-parenting skills, and develops and implements successful parenting plans;

 

•           Works collaboratively with the couple, their attorneys, and other professionals to enhance team communication;

 

•           Acts as an advisor regarding the transition from nuclear to single parent family;

 

•           Helps the attorneys understand family-related issues.

 

  1. 3.            The Child Specialist’s Role

 

Child specialists are specially trained and experienced licensed mental health professionals.  Their role is to identify, clarify, and communicate the needs of the children to the parents and their attorneys.

 

  1. 4.            The Financial Specialist’s Role

 

Financial specialists are licensed and/or certified financial practitioners, such as certified financial planners, certified public accountants, or certified divorce financial analysts.  They are trained in the unique financial and tax issues of a divorcing couple.

 

The financial specialist is a neutral third party who focuses on the interests of both parties.  He or she is not an advocate for either party; rather, he or she is a consultant to the divorcing couple and to all the team members.

 

The role of the financial specialist is to:

 

•           Assist in the development of options for financial resolutions for the family;

 

•           Assess financial issues and analyze tax consequences;

•           Assist with practical financial matters during the negotiations.

 

 

II.         The Underlying Concepts

 

  1. 1.            Parties Working Together

 

Divorcing parties are able, with the support of their counsel, to work effectively together to make decisions that will serve each of them and their children.

 

            2.         Deepen Parties’ Understanding

 

The goal is to help parties reach a deeper understanding of what is important to each of them and their family that can provide the ground for the decisions they will make together.

 

            3.         Maximize Parties’ Responsibility

 

Parties have primary responsibility for the decisions they make for their future, and their children’s, as well as for helping to plan how to work effectively in the collaborative process.

 

            4.         Lawyers Representing their Clients While Serving the Whole

 

The lawyers work, separately and together, to maintain an effective collaborative process that will support their clients’

 

•           active participation,

•           individual and mutual understanding,

•           joint decision making.

 

 

 

5.         Law Contributing but Not Controlling

 

The law can be an important, but not necessarily controlling, element in informing parties’ decisions.  The beauty of the collaborative process is that it frees the parties to craft an agreement that works for their family, rather than resorting to the cookie-cutter approach or a judgment forced on them by a judge in traditional litigation.

 

 

III.        The Roadmap of the Collaborative Negotiation

 

            Step One:     Getting the Case Enrolled:

 

1.1       Client contacts a collaborative professional and has an intake or consultation appointment.

 

1.2       Client is educated about the alternative processes they could use, and is provided with whatever support is necessary to assist in making a decision.

1.3       Second spouse is enlisted in the process, and both parties meet and retain a collaboratively trained attorney.

 

Practice Pointer:  Some groups have a case coordinator who meets with both parties before the case is begun; some groups have a consultation service that assists couples in deciding whether to separate or not, and what process most suits their needs.  Some groups have a mediator who serves as the coordinator of the process.  In some groups, the neutral attends all meetings that occur after the case has begun.  There is no “right way” to do this – just different practices in different practice groups.

 

Step Two:     Getting the Case off the Ground

 

2.1       First four-way between lawyers and clients; signing of participation agreement, identification of team members, signing of release.

 

2.2         Clients each see their individual coaches.

 

2.3         Clients see Financial Specialist for first meeting.

 

Practice Pointer:       Some groups have a “one coach” model; Texas, particularly, has adopted this model.  Some groups mandate only one meeting with the coaches.  Some groups have the first four-way with the clients and the coaches, and then bring the lawyers into the process.  There is no right way to do this – just different practices in different practice groups.

 

 

 

 

Step Three:  Getting the Team on the Same Page and Conducting Assessment Process

 

3.1       Professional Team has a meeting or conference call to outline the needs of the parties and outline plan for moving forward.

 

3.2       Coaches have first client – coach four-way to identify interpersonal objectives and parenting needs and determine if child specialist is needed.

 

3.3       Financial Specialist organizes the financial data, provides the data to the lawyers, and together with the lawyers identify short term cash flow or asset issues, primary case issues, need for appraisals, and conflict zones.

 

3.4       Child Specialist meets with the parents and children as appropriate to develop assessment information.

 

Practice Pointer:  Some case teams successfully meet in person regularly; more groups find that challenging, and have to meet by telephone.  Most rely heavily on e-mail communications.  All collaborative professionals have to try to give their collaborative cases a high communication priority.  The most successful practice groups have regular monthly or twice a month in person meetings to insure process and case communication is regular and effective.

 

Step Four:    Educating the Team and the Participants Sufficiently to Make Negotiations Possible

 

4.1       First Financial Five-Way: Parties and attorneys meet with Financial Specialist; who presents the family’s financial picture, assets and liabilities, income and expenses; decisions are made regarding what additional information is needed before alternative resolutions can be explored, and assignments made to insure that information needed is gathered.

 

4.2       First Children Five Way:  Parties and coaches meet with child specialist, who presents the children’s situation and identifies the children’s needs.

 

4.3       Follow-up two, three, four and five-way meetings as necessary to gather sufficient information to insure that everyone has and understands enough to begin to make decisions; this includes making sure the clients understand enough about the law, their own factual situation, their children’s needs, and their own priorities to rationally begin to make decisions.  This is an on-going process.

 

Practice Pointer:  Different practice groups develop their own protocols regarding the regularity of three-way meetings between the client, lawyer and coach or client lawyer and financial advisor.  You should be sure your collaborative counterpart and you agree about the procedure to be used regarding three ways.

 

Step Five:     Exploring Alternatives

 

5.1       Attorneys meet with their clients, and as necessary, with the coach present, to assist the client in developing their priorities

 

5.2       Financial specialist, at request of either or both attorneys and their clients, designs alternative financial settlement arrangements that meet the client’s expressed priorities.

5.3       Child Specialist and/or coaches: develop parenting plan that meet their shared vision of what their children need from them, and what they want for their children.

 

            Step Six:       Decision Making

 

6.1       Financial five-way:  The parties and their attorneys meet with the financial advisor to understand the implications of their respective priorities on the allocation of resources.  Decisions are made as soon as possible.

 

6.2       Parenting conclusion:  If the parties have developed a parenting plan with the coaches and/or child specialist that is reviewed with the attorneys clarified as necessary and reduced to writing.

 

            Step Seven: Finalizing and Memorializing the Plan

 

7.1       Attorneys draft documents as required by State practice, and work with the clients to execute the documents and file them as appropriate.

 

7.2       Parties meet with the children to familiarize them with the decisions they have made, with or without the assistance of the mental health professionals, as agreed.

 

7.3       Necessary transfers of property, distribution of assets, allocation of debt, refinancing of mortgages, etc. takes place.

 

7.4         Finalization ceremony, if desired by the parties.

 

Step Eight:   Follow-up as Requested by the Clients

 

 

IV.       How It’s Done

 

  1. A.           Communication Guidelines

 

The goal is to assist parties to understand (and assert) own views and to understand each other’s views by supporting effective communication:

 

            1.         Lawyers and Parties

 

  1. Seek to understand own client and also the other party.

 

  1. Clearly and directly communicate own view (without being strategic or controlling).

 

  1. Address difficulties in communication as they arise.

 

  1. Monitor own attitudes that might support, or impede, effective communication.

 

2.         Collaborative Counterparts (Lawyers)

 

  1. Clearly and directly communicate own view to other counsel (without being strategic).

 

  1. Work to understand and clarify the view of the other.

 

  1. Address difficulties in communication as they arise.

 

  1. Monitor own attitudes that might support, or impede, effective communication.

 

3.         Parties with One Another

 

  1. Support each party in asserting own view.

 

  1. Assist parties to try to understand each other.

 

  1. Address difficulties in communication as they arise.

 

  1. Monitor own attitudes that might support, or impede, effective communication.

 

 

  1. B.           Viewpoints for a New Paradigm

 

  1. 1.            Word, Phrasing or Approach

 

 

Traditional

 

 

Collaborative

Conflict

Issue, creative opportunity, differing viewpoints, apparent conflict, challenge

 

 

 

 

Opposing counsel

The person’s name, collaborative counsel, collaborative colleague, team member

 

 

 

Opposing party

The person’s name, spouse, partner, team member

 

 

 

 

Your client

The person’s name

 

 

 

 

 

Demand, position

Interest, need, option, request, explanation of feelings and/or perspective

 

 

 

 

Threat to seek judicial relief

Discussion of legal rights and obligations, discussion of underlying principles of legal rights and obligations, discussion of “fairness”

 

 

Adversarial lawyer

Traditional lawyer, trial lawyer

 

 

 

 

 

Adversarial system

Traditional system, trial system

 

 

 

 

 

Selection of expert likely to benefit your client

 

 

 

 

Joint selection of unbiased expert

Formal Demand for Production of Documents

 

Request for information and documents, voluntary exchange and sharing of all necessary information and documentation, complete and full disclosure even without request

 

Deposition

Informal discussions including the respectful asking and answering of questions

 

 

 

Superior legal or practical knowledge

Information to be disclosed to all participants

 

 

 

Negotiation strategy

Joint problem-solving, individual determination of interests, disclosure of interests

 

 

 

Strategic proposals

Honest discussion of needs and interests

 

 

 

 

 

Impasse, problem, dispute

Circumstance, opportunity, challenging time

 

 

 

 

Hidden objectives

Disclosed objective

 

 

 

 

 

Accusations

Observations, use of “I’ statements

 

 

 

 

 

Win

Balanced resolution, mutual gain, mutual satisfaction, fair exchange of concessions

 

 

 

 

 

Quantitative measure of success

Quantitative and values based measure of success

 

 

 

  1. C.           The Paradigm Shift

 

  1. 1.            Moving Towards a Collaborative Process

 

 

Adversarial

 

 

Collaborative

Positions       

 

Interests

Win / Lose

 

I win!  You lose!

Win / Win

 

Both our needs are satisfied!

 

 

This or That

 

We both can’t be satisfied.

This and That

 

Both our interests can be met.

 

 

Right / Wrong

 

My way is right and yours is wrong!

Different

 

We each have different perceptions of this issue.

 

Defensive / Aggressive

 

I am not safe and must defend myself or attack you.

Empathetic / Assertive

 

I understand what you want.  I also have needs.

 

 

 

Judgment / Blaming

 

You caused this mess and must be punished!

 

Curiosity / Compassion

 

What are you feeling?  I am prepared to listen.

You vs. Me

 

We are enemies.

You and I vs. The Problem

 

We have a common problem which needs to be solved.

 

Dividing the (limited) Pie

 

I must get as much as possible or I won’t have enough.

Expanding the Pie

 

Finding new opportunities and possibilities.

 

Power Over

 

Domination – I must prove I am stronger than you are.

 

Empowerment

 

I get stronger by making you stronger.

           

D.        The Loop of Understanding

 

                        Step 1:            CL inquiries of ----------------------------------  ?        P

 

 

 

            Step 2:            P responds, asserts ---------------------------?          CL

 

 

 

            Step 3:            CL demonstrates and confirms

                                    Understanding ----------------------------------?          P

 

 

            Step 4:            P responds --------------------------------------   ?        CL

 

 

If P feels he/she was not understood, go back to Step 1 and ask:  “What am I missing?”

 

If yes, loop is complete.  To further understanding, Collaborative Lawyer can ask:  “Is there more?” and return to Step 1.

 

 

            E.        Understanding Different Views

 

                        1.         Structure the Process

 

2.         Lawyers Seek to Understand Each Party

 

?           Lawyer helps party “A” to understand and to assert own view (using the loop)

 

            “What is your view of _____?” (Loop)

            “Why is _____ important to you?”  (Loop)

 

            ?           Other lawyer repeats with “B”

 

            F.         Helping the Parties Understand Each Other

 

                        1.         Structure the process.

 

2.         Agree who should demonstrate understanding first (the Looper) and who should be understood (the Loopee).

 

3.         Lawyer(s) say to ‘B’, “What is one thing you remember about ‘A’s view?  Then lawyer(s) confirm(s) with ‘A’ that ‘B’ correctly understood ‘A’s view.

                                    If not, ‘A’ clarifies or mediator can clarify until that loop is complete.

 

                                    Repeat with ‘A’.

 

                        4.         Go back and forth until each party feels understood by the other.

 

                                    Lawyers can coach, if necessary, or act as “bridge” if necessary.

 

            G.        Why/When to Bring in the Law

 

                        The Law May Be Relevant to the Parties in the Following Respects:

 

                        1.         Law clarifies part of the reality parties face

           

                                    ?           Identifying likely outcomes in court

                                                (and possibly narrowing differences in expectations)

 

                                    ?           Providing possible legal protection to parties

 

2.         Law provides an external reference point

 

            ?           Reflecting societal standards

            ?           Embodying underlying principles

 

3.         Law can strengthen the parties’ agreement

 

            ?           Safeguarding agreement against legal challenge

 

            ?           Reinforcing parties’ commitment to own choices

 

            H.        How to Bring in the Law

 

Goal is educate the parties about the law and its impact so that they can decide what weight to give it in their decisions.

 

                        1.         Prior to Team Meeting

 

  1. Lawyers discuss substance of law with client

 

?           Emphasize range of possible outcomes

 

?           Explain non-determinative and unpredictable nature of law

                       

  1. Lawyers discuss substance of law with each other

?           Be transparent and non-strategic

 

?           Seek Agreement on:

 

            ?           A range of possible outcomes

            ?           The application of the law

?           How to present the law to the parties

 

  1. 2.            Team Machine

 

a.         Structure the process

 

b.         Explain non-determinative and unpredictable nature of law

 

  1. Lawyers clarify content of the law (and seek to narrow differences in divergent expectations) regarding:

 

?           The range of possible outcomes in court, including:

 

            ?           strengths of both side’s legal position

            ?           weaknesses of both side’s legal position

 

?           The practical consequences of possible court decision

 

  1. Deal with impact of introducing the law by

 

?           Checking parties’ understanding

 

?           Observing parties’ reactions and eliciting concerns

 

?           Connecting the underlying principles of the law with their conflict

 

?           Establishing the law as only one reference point

 

  1. I.              How to Elicit Interests

 

Goal is to help each party identify what is important, significant, meaningful and beneficial

 

1.         Ask, Loop, Probe

 

2.         Explore beneath positions

 

3.         Empathize/imagine/suggest

 

4.         Frame

 

  1. J.            How to Frame Interests

 

Goal is to work with each party to articulate his/her interests in a frame that will be useful in developing options.

 

  1. Significant to Party

(has emotional resonance)

 

  1. Points toward multiple options

(not too specific)

 

  1. Tangible/graspable

(not too general)

 

  1. Described as present or future benefit

(rather than cost to other)

 

  1. K.           Developing Options

 

Goal is to brainstorm together all options.

 

  1. No evaluation

 

  1. No attribution

 

  1. All options encouraged

(creating value opportunities sought)

 

  1. Attorney options included

(after party options and more than one)

(attorneys alternate in suggesting possibilities)

 

  1. L.            Evaluating Options

 

Goal is to review options together in effort to craft solution workable for all parties.

 

  1. Prioritize

 

Each party designates most and least workable

 

  1. Categorize

 

Put options in relevant categories

  1. Assess against Needs and Interests

 

Assess all promising options in terms of how they meet all parties’ needs and interests

 

  1. Create Packages

 

Develop multiple proposals with elements from different categories

 

  1. Negotiate outcome

 

Parties refine, test and choose