Some practicioners try to sell the Collaborative Process as a cheaper alternative to traditional divorce.  I think that this is unfair to clients and incorrect.  It is absolutely correct that the collaborative process will be cheaper than going to trial 100% of the time.  It is possible, however, in a traditional divorce to reach a very quick and cheap settlement.  The difference between that settlement and a collaborative settlement is the way that the settlement is reached and the reasons behind the settlement.   Specifically, the traditional divorce settlement is likely a quick and dirty settlement that does not address the needs and interests of the parties.  In a collaborative settlement, which may take longer (and therefore cost more), the parties will be heard and long lasting and thoughtful settlement will be reached.   Another way in which collaborative work can be more cost effective is via cooperative discovery as opposed to litigated discovery.

As an attorney who practices both Collaborative Divorce and traditional litigation I experience both the cause and the effect of the breakdown of the collaborative process.

The main reasons that I see for the breakdown of the process is as follows:

• Improper Initial Screening:  A failure by the attorneys to properly understand the parties’ interpersonal dynamics and personalities.  With good attorneys and good support personel most spouses can utilize the collaborative process.  In situations where one party or the other cannot or will not share information in good faither; where one party or the other has been physically abusive; or where there is a complete lack of reasonableness, the collaborative process will not work.  Many times a potential client will want to use the process, but doesn’t understand why he/she or the other party will not be able to do so effectively.
• Unrealistic Expectations:  Many parties look into the Collaborative Process to save money or because they want something that they know a court cannot provide.  These can be outcomes that result from the process, but not in every situation.  If a party is unwilling to accept or back away from an unrealistic expectation the process will not work.  This will result in both higher costs and a longer process.

What happens next.  After the breakdown, the parties need to look for new traditional legal counsel and start the whole discovery and information gathering process anew.  This is costly and frustrating.  In addition, one party or another may be in a worse position than had the collaborative process never started in the first place.  This can be very upsetting to clients and can be a potential source of problems for the initial collaborative attroney if he/she failed to properly screen the case.

If you are looking into the collaborative process, it is a terrific way to work through a difficult legal issue, just be sure that you ask your attorney, or your client, some tough questions to make sure the process is the correct one for your situation.

Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases.  As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice.  In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate.  The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused.  Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence.  The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer.  A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome.

A large difference between traditional litigation negotiation and negotiation in the collaborative process is the positional bargaining is used in traditional litigation while interest based negotiation in used in the collaborative process.  It is important to have an attorney skilled in interested based negotiation when participating in the collaborative process.  The focus is on reaching a settlement that meets both the needs of your client and of his/her spouse.   There can be many settlements that meet this purpose and having competent counsel can insure that the settlement reached is the best for you.

            The key components of interest based negotiation are as follows:

Interests: Whatever position each side is taking, the key to the negotiation is to reach an outcome that meets everyone’s interests.  It is important that the attorney takes the time to truly understand both his/her client’s interests and the other party’s interests.

Options: A good outcome should be the best possible way to meet all parties’ interests.  The more options that the parties can come up with, the better chance of reaching the best option.

Alternatives: A good outcome should seem better than all other alternatives on the table.  Before reaching an agreement, the sides should know what the alternative would be if no agreement is reached.  In a collaborative case, that option is the uncertainty of litigation.

Legitimacy: External objective standards are helpful in allowing both sides to feel that the outcome is legitimate.

Communication: Effective communication will lead to both an efficient and beneficial outcomes.  This involves both listening to the other side and properly educating them about your side’s interests.

Relationship: At the end of the negotiations, the relationship between the parties should be improved rather than further damaged. 

Commitment: The quality of an outcome is measured by the quality of the promises that are made.  Both sides need to make sure that the agreement is one that both sides can actually carry out.

The PennFamilyLaw.com blog posted an interesting article on Madonna and collaborative divorce.  The post can be found at http://pennfamilylaw.com/2008/10/22/madonna-and-ritchie-may-pursue-collaborative-divorce/.  Madonna would be the first celebrity to use the collaborative divorce process.

The post reprints an article from the London Times online edition.  The full text of the article is copied below.

Madonna and Guy Ritchie could be the first high-profile couple to divorce collaborative-style.

The new, fast-track and non-confrontational way of reaching arrangements over money and children on divorce has just won senior judicial backing – in the week that the couple’s split became public knowledge.

Collaborative law does not sound buzzy. But it is the in-method of reaching divorce agreements, with the benefits of speed, huge cost savings and, above all, minimum acrimony.

Last week a couple of hundred lawyers gathered to celebrate the fifth year since American-style collaborative law was introduced in the UK. In 2003, four London lawyers were among a handful who had qualified in the new method; now there are more than 1,250 and more than 300 in London. This year has also seen the appointment of London’s first “collaborative” silk: Tim Amos, QC.

What is it? It aims to help couples reach agreement out of court, avoiding the risk of the public mud-slinging and battles epitomised in the split between Sir Paul McCartney and Heather Mills.

Settlements are reached in four-way, face-to-face talks between the parties and their lawyers. There is an incentive to agree: if the talks fail, then new lawyers have to be instructed for court proceedings – at extra cost.

The couple draws up a consent order which is then agreed by the court. This process used to take three to four months. But last week , Mr Justice Coleridge, a senior family judge, announced a fast-track procedure whereby such orders could now be approved within a couple of days.

He said that If every aspect of the case had been agreed, and the hearing before a judge for approving the order would not take longer than ten minutes, all that was needed was a day’s notice to the court and a chance for the judge to read the papers overnight.

The fast-track initiative, which has the backing of Sir Mark Potter, president of the Family Division, comes about after an un-named couple had asked for urgent approval of their settlement because one was about to move to the United States with the children.

At first, Mr Justice Coleridge said that he thought the application rather cheeky. But he added: “However, I am, as is well-known, a pussycat, and agreed to hear the application for approval as the first in the list on the following day.”

The key benefits of the new “good divorce” method are that it is non-adversarial; solutions can be tailormade and flexible; clients have control of the pace; experts (accountants, financial advisers, therapists or counsellors) can be brought in and work with the couples; and privacy is preserved.

He did sound one note of caution, however. Lawyers needed to be “acutely sensitive” to the process failing so that “costs are not run up first by one process and then, after the trial has hit the buffers, by the old-fashioned scheme”.

Isobel Robson, partner and head of family at Andrew Jackson, the Yorkshire law firm, said there was a big take-up in the new method.

“I believe that collaborative law is the most exciting development in family law in my 24 years of practice. Clients love it; they regard the process as direct, clear and amicable whilst avoiding the expenses and latent aggression of the court process.”

Cost savings were considerable too, she said. “I have dealt with collaborative cases with assets in the millions and costs of under £10,000 – perhaps only 10 per cent or less of the costs for contest cases with the same assets.”

The take-up among lawyers is still patchy, however, with some hugely successful pockets in the regions where lawyers have embraced the new method, but a slower take-up in other areas, including London.

“The clients embrace the concept that the whole focus of their case is on settling – rather than fighting,” she said.

Suzanne Kingston, head of family at Dawsons LLP, said that for Madonna and Guy Ritchie, the privacy would be a big incentive. The settlement could be reached “in one of the offices of the solicitors rather than in court”.

So it’s down to Fiona Shackleton (for Madonna) and (Lady) Helen Ward, for Ritchie. The couple are said to want a deal by Christmas. Using this route, they could well do it.

The current economic situation is affecting every facet of daily life.  Legal issues are significantly affected due to the fact that they often involve financial issues.  Divorce, among other things, is a financial division of a parties’ assets.  Usually both parties lose assets and, in addition, have to spend money on legal fees.

The collaborative divorce process is not free, but it has certain advantages over the old fashioned way of divorcing. 

1.  Long-term solution.  The collaborative divorce process results in a divison of assets that is designed to be of a long-term benefit to the parties.  Traditional ways of dividing assets can be avoided.  Financial specialists are used to figure out the most beneficial outcome for the process. 

2.  Avoiding ongoing litigation.  Traditional divorces rarely end after the divorce is legally finalized.  There are almost always on going obligations between the parties, such as selling a house or support payments.  It is rare for divorced spouses to not end up back in litigation over an issue.  The most common current one is modifying spousal support obligations.  Parties who have used the collaborative process are much less likely to go back to court and, if something does need to be changed they can use collaborative means.

3.  Cost.  While the collaborative process has costs associated with it, it is always cheaper than going to trial. 

4.  Cooperation.  The lawyers in a collaborative divorce are working together for the family’s best interests  as opposed to fighting with each other.  This leads to better availability to discuss mutually beneficial outcomes.

If you are thinking about divorce, but are fearful of the process given the current economy, I suggest that you schedule a consultation with Stephens Margolin P.C. to find out if the collaborative divorce process could ameliorate those concerns.

A question that clients frequently ask in an initial consultation is why they should use the collaborative process instead of mediation.  Given the lack of general public knowledge regarding collaborative divorce, this is not a suprising question.  Clients often come upon collaborative divorce via interest in resolving their divorce without lawyers.  They view mediation as a way to resolve the dispute without having the expense and percieved animosity that comes from using attorneys. 

While I am supportive of the benefits that mediation can provide, there are a few real differences between mediation and collaborative divorce that a client should know about:

1.  Power imbalance.  In a mediation without attorneys it is easy for the spouse with greater power in the relationship to control the result.  For instance, a spouse who is guilty about having an affair may give up much more than he/she should from a sense of guilty; or a stay at home parent who has never been in charge of the finances may not ask for what he/she deserves due to a lack of knowledge or about the finances.  The mediator, as a neutral party, cannot step in and advocate for the spouse with less power.  In the collaborative process, each party has an attorney to make sure that the power imbalance is taken out of the process.  The lawyers, in fact, will work together to smooth out any imbalance in order to reach a fair agreement.

2.  Interest based negotiation.  Even though a lawyerless mediation is based around the idea of amicably reaching agreement, it still uses positional negtiation.  Each party takes a stance and the mediator helps them meet in the middle.  Collaborative divorce, on the other hand, used interest based negotiation.  The parties try to reach an agreement based upon their interests rather than hard positions that they will not back off of.  A mediator is often happy with an agreement that both spouses do not really like but that they will agree to.  In a collaborative divorce, the lawyers work with the parties to reach an agreemen that they both like.

3.  Advocacy.  Divorce is a stressful process.  People manage the stress and emotions differently.  Without an objective advocate, it is extremely difficult for a spouse to think through the complex peronsal and financial issues that need to be resovled in a divorce.  The collaborative process provides not only attorneys to assist with this, but also divorce coaches who can help the parties manage their emotions and keep them from getting in the way of the optimal result.

The lawyers at Stepehens Margolin P.C. welcome these discussions.  Contact the office to schedule a consultation to find out more about how the collaborative divorce process can assist you.

In today’s legal environment couples facing a divorce have a realm of dispute resoultion options.  Give the current economic situation, and its affect on state budgets, it is likely that trial court resources will be less available than ever in the coming months and years.  In order to make an informed decision on how best to proceed with a divorce it is important to have an understanding of the dispute resolution spectrum.

At one end of the spectrum is Trial where a court decides a case regarless of the parties’ interests and needs.  This end of the spectrum provides less privacy, less control over the process, very little control over the outcome, little flexibility in the options for resolution, less individual results, more third party control and a great deal of expense.  This end of the spectrum is also slower and less efficient.  At the other end of the spectrum is negotiation without lawyers between couples directly.  This allows for more privacy, control, and very little cost.  The downside is that the spouses do not have access to experts who can help them understand the options that are out there and make sure that they are addressing all of thier needs.  About one-third of my clients and people who tried to do a divorce on their own and are coming to me to clean up the mess.  This is almost always more expensive and provides less options than if they had come to me originally for a full blown litigated divorce. 

Closer to that end of the spectrum is collaborative divorce.  Collaborative divorce allows for both the expertise of lawyers and other professionals and the benefits that come outside of the court process.  These include a faster and more efficient outcome, more control over the process, total control over the outcome, interest based results, low third-party intervention, lower cost and a great deal of individualization.

At the end of the day each point on the spectrum is the right fit for a number of people going through a divorce.  It is important to meet with a collaboratively trained lawyer in order to understand which fit is right for you.  The lawyers at Stephens Margolin P.C. are collaboratively trained and can help you with this choice.

I wish to thank Pauline Tesler and her book “Collaborative Law” (which can be ordered from the ABA web store by following this link:  http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5130160) for much of the information contained in this post.