Monday, January 26, 2009

A Collaborative Divorce Post - New York and then the World

First, from Rochester, New York comes a new blog, Rochester Family Lawyer, with a post on collaborative law, Basics of Collaborative Family Law.

I think the article does a very good job of describing collaborative law and is the first I can recall describing the difference between collaborative divorce and mediation/arbitration:

"Collaborative divorce in New York uses informal methods of financial disclosure such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals, including family counselors, accountants and financial planners.

Collaborative law creates a cooperative atmosphere, unlike the adversarial atmosphere of the courtroom. Unlike mediation and arbitration, Collaborative Law provides the client with trained legal advocates, without the court costs. A New York divorce handled in court is likely to be much more expensive and time consuming than the costs and time involved in collaborative law.

Collaboration represents the middle ground between mediation and full adversarial litigation. In mediation, the parties meet with a neutral mediator who assists the parties to find a compromise. In mediation the parties advocate for themselves, the mediator cannot give any party advice or assist either of the parties in advocating their position."
I also think the article's "Some General Principals and Guidelines of Collaborative Law" worth highlighting:

Negotiation through cooperation rather than adversarial strategies

Practicing law through problem-solving negotiations in which the parties are proactive, seek to understand and to be understood

The parties are responsible for the action and the outcome

The parties develop common ground rather than focus on differences

The parties seek to understand the other person’s interests and concerns, which will lead to creative solutions to problems

The parties seek to resolve issues and concerns with each accepting and supporting the other person’s opinions

From the United Kingdom's Family Law Week comes It's a Collaborative World: The Ninth Education Forum of the International Association of Collaborative Practitioners:

The International Academy of Collaborative Professionals (IACP) met for its Ninth Annual Forum in New Orleans from the 15 to the 19 October. The IACP is an international wide community of legal, mental health and financial professionals whose stated aim is to resolve conflict using client centered processes following the end of a marriage or relationship.

The IACP has a stated membership of 3000 members from 19 countries. The membership is by no means is dominated by legal professionals. The therapeutic and counseling communities and members of the financial industry are well represented within the membership of the IACP. The IACP is based in Phoenix, Arizona. The Officers are mainly based in various states of the USA and Canada. However on the Board of Directors are international representatives from Cork, Sydney, Edinburgh and London.

The founder of the Collaborative Law movement, Stu Webb, is based in Minneapolis, Minnesota. Having practiced traditional family law for 20 years he wanted to find a way to utilize the skills of lawyers as problem solvers into a “settlement only” process for family conflict. He envisioned a model where lawyers and their clients would agree not to go to Court over any issue that may arise thereby allowing them to rise to the challenge of solving the problem. This was in the late 1980s.


"In a fledgling collaborative community, for both practitioners and clients, failure of the process at this stage can be too damaging. For collaborative law to truly grow and take off we need to ensure that experience of the process for both clients and practitioners is positive. As collaborative practitioners we are caretakers of the process with a duty to educate ourselves and acquire the extra-curricular skills that we need to be effective collaborative professionals.

The 5 days I spent at the Forum were hugely instructive in giving me a deeper understanding of how to do this. It is not easy. It goes against the grain for lawyers to let go of the outcome and to give control of the process to the client. We are used to being asked to take control, to drive the case and deliver to the client. That comes as easily to us as breathing. The challenge is to accept that it is the client’s agreement, it is their past their present and their future. We need the skills to change the way we think of and handle conflict. It is not simply a case of ‘business as usual’ but done with four of us around a table instead of in a court. It is over and above taking a conciliatory and constructive approach to the client’s case. I learned that it really is so much more."
Let me bring collaborative law back closer to home. Up in Fort Wayne, the Allen County courts have a local rule dealing with they call cooperative divorces:
LR02-TR16-722 Case Management(6) Cooperative Divorce. Parties formally engaging in the Cooperative Divorce process shall be provided priority settings for Case Management Conferences and will be afforded other such procedural assistance as appropriate to assist in expediting their cooperative process.
Unfortunately, there is no explanation of the Cooperative Divorce process in the Allen County Local Rules.

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