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.

While traditionally collaborative divorce is thought of applying to the end of marriage, the collaborative process (or something very similar) can be used to help people begin their marriage.  Collaborative pre-nuptial agreements are the result of open communication and full disclosure between a future husband and wife. 

Both people meet with one attorney, after signing conflict waivers.  That attorney ends up officially representing only one of the parties.  At the meeting, the attorney explains his/her view of pre-nuptial agreements and works with the parties to come up with an agreement that they want to have drafted.  Since it is a requirement of the statutory laws regarding pre-nuptial agreements that the parties fully disclose everything to each other, meeting together with the attorney should not be a problem.  After the document is drafted, the parties bring it to another lawyer, who officially represents the other spouse.  That lawyer reviews the document with them.  If any issues come up, the parties and lawyers meet together to resolve the dispute.

Rather than having the pre-nuptial process cause a rift between the parties, this process allows the parties to work together on the roadmap of their financial future.

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.

How do you get what you want in a divorce? What if you want something the court can’t give you?  One of the primary differences between a Collaborative divorce and a litigated divorce is Collaborative Law’s focus on the goals of each party vs. litigation’s focus on positions. In a litigated divorce, negotiation involves positional bargaining instead of interest-based negotiation which is the basis of Collaborative Law.  Parties argue over what percentage of the assets or liabilities or parenting time they will receive. In the litigation model, parties may start out with extreme positions hoping to end up somewhere in the middle. Other issues are determined more or less automatically, like setting child support, awarding the dependency exemption, or determining custody.  There may be argument and negotiation, but there isn’t a lot of dialogue.  Parties take what a court would give them rather than what they really want.

In Collaborative cases, parties focus on how to achieve their goals. The parties set goals, gather information, and then brainstorm to generate options. After evaluating the options, each party asks for what they want to help meet their needs. There are no automatic formulas. Rather, there are sincere discussions that lead to agreement.  The process empowers the parties to ask for what they really want, and usually the parties reach an agreement where they are both satisfied.

The Uniform Collaborative Law Act was passed by the ULC on July 15th. View the following link for a draft of the act: http://www.law.upenn.edu/bll/archives/ulc/ucla/oct2007draft.htm.

As a firm practicing only family law, we try to steer clients in difficult circumstances towards good choices. Focusing on your children’s success is a good choice. Being economically rational about the property division is a good choice. Loosing sight of what is important to you, your children, and your family in an attempt to “win” is a bad choice.

A new study commissioned by Wakefield on behalf of the New York Association Of Collaborative Professionals found that 1 in 5 Americans know someone who got so caught up in “winning” a divorce that their family, work or social life suffered. A link to the press release about the study is here.

The Collaborative Practice model for divorce can keep a couple focused on a more positive outcome, and avoid the stress and anxiety of a courtroom battle. Stephens Margolin P.C. is committed to the growth of collaborative divorce as an option for Oregon families.

The American Bar Association posted an interesting article about an increase in business for divorce law firms handling higher end divorce. A link to the article is here. While the news is full of stories about couples postponing divorce in the economic downturn, some couples with assets are choosing to divorce now for asset valuation issues. For divorce purposes, assets are likely to be valued at the time of settlement or trial. Electing to divorce during the economic downturn locks in lower valuations on securities and real estate, leading to lower equalizing judgments.  Our experience has been that some clients have been able to retain assets in divorce for zero valuation because of the market declines, where in prior years they would have to pay to retain the assets in divorce.

This development may speed the adoption of the collaborative divorce model in Oregon, as our experience has been that the process more frequently selected by higher asset couples.

We like divorce information lists! The Association of Divorce Financial Planners posted a useful article on their site captioned “Fifteen Critical Financial Mistakes in Divorce.” The list is useful, however, I am always surprised about how much good divorce information is on the web that omits collaborative law as an option.  The article says it is a mistake to not consider mediation, however, there is no mention of collaborative divorce as an option. Parties considering divorce are well served to consult with lawyers trained both in traditional litigation and collaborative divorce to make sure that all options are available to them. I would add a 16th critical financial mistake to the list: “Failing to explore whether the collaborative model is a good fit for your case. “

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.