Collaborative Law
How paralegals help
put the pieces together in a new family law model.
By Rachel Campbell
Jamie Ann Tyo and Amanda Flatten also contributed to this article.
November/December 2004 Issue
The face of family law is slowly
changing as a new divorce procedure gains popularity among attorneys and
clients alike. Touted as an easier, less stressful and more civil
alternative to filing a divorce, collaborative family law is picking up
speed in family law firms across the nation as more attention is focused
on this new method.
Because of its nonconfrontational style
and commitment to forgoing litigation, more and more attorneys are
including collaborative law into their practices, giving their
paralegals a new type of law to learn and new duties to master.
It All Started
With an Idea
Twenty years into his career as an attorney, Minneapolis
senior divorce attorney Stuart Webb said he was tired of handling one
nasty divorce after another. He realized there had to be a better way to
go through the process.
“In family law, everything is so bitter.
I was so tired of it, I was going to quit law,” Webb said. “I enjoy
working with clients, but I don’t like going to court.”
Instead of quitting family law, Webb
decided to practice it a little differently. He and a group of attorneys
came up with the collaborative law model where attorneys on both sides
of a divorce agree not to go to court. With the attorneys committed to
not going into litigation, the lawyers keep a positive tone and are more
dedicated to resolving the issues, Webb said.
Webb started practicing collaborative
law on Jan. 1, 1990, and has practiced it exclusively ever since. Today
he estimates there are more than 4,000 attorneys in the United States
and Canada who participate in collaborative family law.
The Process
With the collaborative law approach, parties negotiate their
issues in a controlled, respectful setting with the assistance of
specially trained family law lawyers.
Several steps are included in the
collaborative law process. First, conferences are held to resolve the
parties’ issues, such as the division of the assets or parenting
decisions. Both parties agree to remain civil and set aside blame during
negotiations. The parties also agree to honest and voluntary disclosure
of all pertinent information and documentation.
Today, the basic collaborative model
Webb established in the early ’90s has evolved from just the parties and
their lawyers. Parties are encouraged to use joint experts as needed to
come to an amicable agreement. Such experts can include psychologists,
social workers, divorce coaches, child specialists and financial
specialists, along with the attorneys and paralegals. Ultimately, the
parties commit to work together to resolve issues and reach agreements
beneficial to everyone involved. In the collaborative law model, no one
can go to court, or even threaten to do so, during the procedures. If a
settlement isn’t reached, the collaborative law process is terminated
and both lawyers are disqualified from any further involvement in the
case. The attorneys can never go to court for the clients who retained
them.
Although similar in principle, the
collaborative law process differs from mediation, where one neutral
individual helps both parties try to settle their case. The mediator
can’t give either party legal advice and can’t help either side advocate
its position.
The primary difference with working in
the collaborative model as opposed to traditional divorce is that
everyone, including opposing counsel, is working as a team, said Peter
Wiere, nonattorney mediator and co-founder of the Coalition for
Collaborative Divorce based in Southern California. “Cooperating is the
hardest thing. The other most difficult thing is teamwork,” he said.
According to Beth Honeycutt, a legal
assistant at the Denton, Texas collaborative and litigious family law
firm Gregory & Connor, staying out of court helps a case run smoothly.
“Everyone is so much more relaxed about it,” she said. “There are no
outside stressors on you as a legal assistant. With the collaborative
agreement you file with the court, you tell the court you are going to
go with this method, and the court essentially backs off.”
In Honeycutt’s firm, the parties and
their attorneys sign a participation agreement stating that both parties
agree to discuss all of their financial and custody matters openly.
“Your participation agreement says you really are going to participate
with the full understanding that you are being trustworthy and trusted
by the other party to bring everything to the table, whether that is
retirement information, separate property, community property, you name
it,” Honeycutt said. “If the other side asks for something, you are
going to produce it willingly.”
After a participation agreement is
signed, the clients and their attorneys set up what Honeycutt’s firm
calls four-way participation meetings. The location of the meeting
rotates between the attorneys’ offices, so neither party feels
disadvantaged, Honeycutt added.
With this team mentality, parties no
longer have to worry about the other side hiring experts who might
provide pumped up testimony on behalf of the client. For example, in a
litigation family law case, each spouse might hire separate appraisers
who go before a judge with two wildly different values, leaving it up to
the judge to decide which is the correct one. “In a collaborative case,
you would have the parties and their attorneys agreeing up front who
they would use as an appraiser,” Honeycutt said. “The appraiser would
not be padding his or her appraisal for one party or the other.”
Collaborative law can lower the stress
on the two parties and speed up the process of a divorce. While a
typical divorce could take years, according to Honeycutt, a typical
collaborative case can take two to 12 months to resolve, depending on
the extent of the parties’ assets and whether or not children are
involved.
“We had a case where the parties had
their first four-way participation meeting, and our attorney walked out
and said, ‘Here, we can start drafting the decree. This is the agreement
we made,’” Honeycutt said. When that happens, the legal assistants then
puts the decree together, waits the 60 days required in Texas to file a
divorce, and the case is complete.
Some organizations, such as the CCD,
offer several different options for divorcing couples. The CCD starts by
offering the couple the option of filling out the papers by themselves
or with the assistance of a legal document assistant. If a couple
understands the forms for filing a divorce agreement, they can
accomplish this easily and cheaply using either of these methods, Wiere
said.
The next method would be to include a
mediator to help the couple resolve difficult issues. The mediator might
or might not be an attorney in this case, but Wiere stressed that even
if the mediator is an attorney, he or she can’t provide legal advice in
this method. If more help is needed to resolve issues, the mediator can
expand the team to include consulting attorneys and other professionals.
If they are unable to accomplish things at this level, couples then move
into the collaborative process with two collaborative lawyers, who might
also expand to include an entire team of professionals.
In the end, the crux of the
collaborative effort is to keep the clients from having to go into
litigation, which saves the time and money it would take to go to court,
and also makes the process less stressful for children that might be
involved. “In family law, it’s the people that get a divorce and it’s
the kids who are often innocent victims,” Wiere said.
The Paralegal
in Collaboration
Although cases don’t go into litigation in the collaborative
effort, legal assistants are used in much the same way they are in
traditional divorces cases — they gather information, fill out forms,
and through one-on-one contact with clients, they also deal with the
emotional aspects of a divorce.
“You always go through some of the grief
that you go through when there is a death,” Honeycutt said. “In a sense,
divorce is the death of a marriage. [Legal assistants] do some
handholding for our clients, which I think is one of the best ways we
get to assist our attorneys. We get to help people going through these
very difficult times in their lives.”
Lynette Bledsaw, an attorney for
Chadwick and Mertz in Minneapolis, decided to go into collaborative law
because she said she liked the idea of helping couples maintain some
communication instead of acting with hostility toward each other. “It’s
less damaging to relationships,” she said.
When Bledsaw uses a paralegal, it’s
typically for pulling documents and drafting purposes. “There are
different documents involved. One is a participation agreement. In
collaborative cases, we do a joint petition. In some collaborative
cases, we do a sworn statement of assets. In our office, the paralegal
will pull the documents,” she said.
In Bledsaw’s firm, paralegals also can
assist in drafting documents such as a Joint Petition Findings of Fact,
Conclusions of Law, Order for Judgment and Judgment and Decree (which is
the final “Judgment and Decree” and is drafted according to the language
and agreements in the Marital Termination Agreement signed by the
parties), as well as other documents required by the court at the time
of filing, such as Certificate of Representation and Parties,
Confidential Information Form and Default Scheduling Request.
At Honeycutt’s firm, the legal
assistants also prepare the firm’s collaborative law notebooks. The
notebooks keep the case organized and contain documents such as the
participation agreement and agendas.
Sherri Goren Slovin, collaborative
attorney and member of the Collaborative Law Center of Cincinnati said
paralegals typically are used to gather information in family law cases.
“In this case, it’s just being used for negotiation purposes, not trial.
Legal research and legal analysis still is involved,” she said.
Slovin said she uses a paralegal to help
with document gathering, client contact, scheduling meetings and
document drafting, as well.
Training
Because the collaborative law process is very different from
traditional divorce litigation, training sessions are provided to help
attorneys learn how to mediate between the two parties in the divorce.
“It’s basically a different process in which lawyers have been trained
in a specific choreography to come to an agreement,” said Slovin, who
also provides collaborative law training for lawyers.
Slovin said in her training sessions,
lawyers are trained in interest-based negotiations and skills to empower
clients to resolve conflicts. “Lawyers still have an advocacy role in
collaborative law,” she said.
Bledsaw said she attends training
sessions provided by her local collaborative law group’s Training
Committee a couple of times a year. The training is typically a two-day
session in which attorneys, as well as psychologists, social workers and
financial experts attend.
During this training, attendees learn
how to better manage the process of collaborative law. “This includes
learning how to be less like a ‘gladiator’ and more conciliatory in our
responses to the ‘other side’ during four-way meetings, how to ask the
right kind of questions — questions that are noninflamatory and will
draw out the parties’ various interests, as well as how to help the
parties be creative in finding solutions to issues that arise,” Bledsaw
explained.
Training sessions are intended to teach
attorneys how to educate their clients in the collaborative law process,
and how and when neutral experts might be needed, according to Bledsaw.
“Our trainings have consisted of those which were primarily lecture
format,” she said. “In others, there have been designated attorneys
‘role-playing’ in front of the group.”
The training courses Bledsaw has
attended have been taught by experienced attorneys from other practice
groups and other experts in collaborative law. “Chip Rose, a
distinguished mediator and attorney from Santa Cruz, Calif., was our
speaker earlier this year. Stu Webb, the founder of collaborative law,
is a member of our local practice group and always is willing to answer
questions and comment,” she said.
Bledsaw said paralegals also could
benefit from the sessions. “It would be helpful to take training
sessions because they would understand the process better,” she said. “I
believe it’s important that paralegals and other staff understand the
underlying philosophy of collaborative law because it’s essential that
all parties and their attorneys are treated with respect in all contacts
with the firm.”
Not for
Everyone
Collaborative law definitely is not for everyone. Clients
must be emotionally prepared to approach a divorce in this manner, and
attorneys must be willing to set aside any possibility to take the case
to trial.
“People may think that with the
collaborative method, you are getting less. It’s the opposite, but
people don’t know that.” Wiere said.
He explained that some people have the
misconception that the court will reward him or her more for being the
“good” spouse. However, that is not be the case in no fault states such
as California.
“Certain clients know exactly what they
want and they know their spouses don’t want them to have it,” Honeycutt
said. “Your collaborative law clients have processed a lot of stuff
already. At least they are willing to talk to each other, which, in most
litigated cases, clients are not. They are very against talking and
there is no trust at that point.”
Without a certain level of trust that
the opposing party is going to be forthcoming, as outlined in the
participation agreement, the collaborative process can be all but
impossible. In that case, the parties can turn to litigation with new
attorneys.
“There are certain timelines we do have
to follow,” Honeycutt said. “When you go with a collaborative law case
in Texas, the court essentially backs off for about 12 months, and then
you have to file a short notice with the court if the case is still
active. Then you get another specific deadline, and if nothing has been
done, the court will step in.”
Attorneys also sometimes prefer the
litigation method to the collaborative, Honeycutt said. “They went to
school to become litigators,” she said. “They want to go to court and
they want to help their clients have their day in court.” It’s not a
replacement to divorce court, Honeycutt pointed out, it’s simply an
alternative to it.
The Future of
Collaboration
Experts involved in the collaborative effort agree this type
of divorce procedure will continue to gain in popularity and will
someday become standard.
“Collaborative law is less expensive
financially and usually takes less time. Emotionally, people are better
off. I believe it will become more popular as people are becoming aware
of the process, particularly if they have small children. The children
suffer less,” Bledsaw said.
“I think there will be a time when the
adversarial process [of divorce law] will become a rarity,” Wiere said.
“I just don’t know how long that will take.”
As collaborative law continues to gain
popularity, paralegals interested in family law will have a new field to
explore.
“From the family law perspective, you
have to enjoy people and you have to be organized,” Honeycutt said. “If
you enjoy working with family law clients, with a lot of client contact,
you will enjoy the collaborative law approach.”
Collaborative Law Resources
-
The Collaborative Law Center,
Cincinnati:
www.collaborativelaw.com
-
Collaborative Family Law Council of
Wisconsin:
www.collabdivorce.com
-
The Advocates Network, Wisconsin:
www.advocatesnetwork.com
-
Stuart G. Webb, collaborative law
founder and lawyer:
www.divorcenet.com/mn/webb.html
-
Coalition for Cooperative Divorce,
California:
www.nocourtdivorce.com
-
International Academy of Collaborative
Professionals:
www.collabgroup.com
-
Collaborative Law Institute of Texas:
www.collablawtexas.org
-
Collaborative Law Institute, Minnesota:
www.collaborativelaw.org
-
Collaborative Divorce Training
Institute, Minnesota:
www.collaborativedivorce.com
-
Collaborative Family Law Association of
Ontario: Toronto Group:
www.collaborativefamilylawassociation.com
-
Collaborative Divorce Vancouver:
www.collaborativedivorcebc.org
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