By: Jodie McGill of McGill Law, P.C., L.L.O.
Collaborative law is an alternative to litigation. It was started in 1990 in Minnesota by Stuart Webb, a domestic relations attorney. It has grown to be a type of practice used world-wide. According to the International Academy of Collaborative Professionals, there is a Collaborative Practice practitioner in virtually every state in the U.S., every province in Canada and 22 other countries around the world. In Nebraska, we focus our use of collaborative practice on domestic cases, primarily divorces. The Nebraska Academy of Collaborative Professionals was started in 2005.
Collaborative cases are different from regular litigated cases because at the beginning of the process, the parties sign a Participation Agreement wherein they agree that they are not going to take the case to trial and instead they are going to work toward settlement. The Participation Agreement also sets forth that if the collaborative process fails for some reason and the case proceeds toward litigation, the parties acknowledge that their collaborative attorneys cannot and will not represent them in the litigation. They will have to find new attorneys.
I think it is appropriately referred to as divorce for adults. The parties are encouraged to engage in good faith negotiations to reach resolutions to their mutual problems in an honest and respectful way. The feuding couple is encouraged to look past their immediate emotions (and possible desires to inflict pain on the other) to the end goal and to focus on the future. To assist the parties in the process, each party hires a collaborative attorney and utilizes a divorce coach. The job of the collaborative attorney is to act as an educator and a guide throughout the collaborative and settlement process. The attorney should educate their client about the process, explain the applicable law, legal ramifications of different decisions, and assist the client frame the specific issues to the case. The attorney is also responsible to assist the parties in their negotiations, draft the necessary legal documents, and to handle the legal process necessary to effectuate the divorce or other legal remedy sought by the parties.
A divorce coach is a licensed mental health professional with specialized training to help parties navigate the emotional aspects of the divorce. The divorce coach does not offer therapy but instead is involved to, “assist the parties handle emotional and psychological issues that might otherwise get in the way of the settlement process.” Stuart Webb, The Collaborative Way to Divorce (2006).
Sometimes the parties can also benefit from a child specialist and/or an independent financial adviser. A child specialist is a neutral third party who acts as an advocate for the child(ren). The child specialist is also a licensed mental health provider who has specific training and experience in child development and family relationships. The child specialist speaks with the parties’ children to assist the parents in understanding what the children need and want. This enables the children to have a voice in the process and allows the parties to make decisions with the children’s best interests in mind.
The independent financial specialist is a certified divorce financial analyst who acts as a neutral professional to address the financial aspects of a divorce. The financial advisor can assemble, organize, analyze, and educate the parties about their different options and how those options could affect them in the future.
Collaborative law uses specially trained and skilled professionals to reach fair solutions and resolve issues, while avoiding the cost, time, and uncertainties of litigation. Collaborative law focuses on helping people achieve a fair and equitable settlement and encourages and supports clients through the process of restructuring their family.
It puts the power where it belongs- with the parties. With the assistance of the aforementioned professionals, the parties are placed on a more level playing field and are able to make informed decisions for their future. The collaborative process should work for any couple that is committed to the process unless there is a history of extreme domestic abuse, there are major dependency issues, or one party has an inability or unwillingness to be honest during the process.
But does it work? Yes! According to a 2009 study conducted by the International Academy of Collaborative Professionals, approximately 90% of cases end with an agreement reached through the collaborative process. In Nebraska, historically there have only been two cases that ended as unsuccessful.
As attorneys, we are tasked with acting in the best interest of our client(s). That means we do not push, encourage, or advocate for our clients to make decisions now that will wreak havoc on their lives later. That does not mean that we push for a trial when we know that a trial will only increase the hostilities between our client and his/her spouse and will likely not result in what our client wants. That also does not mean that we run up bills fighting on their behalf for things that are worthless or meaningless to our client in the end. Even though the children in these domestic cases are not our clients, don’t we still owe some obligation to the children as they are extensions of our clients and their happiness will so greatly affect our client’s happiness? Too often litigation is directly opposed to our client’s best interest.
Not enough Nebraskans know about this more cost effective less adversarial alternative to regular litigated divorces.
I first heard about collaborative law from Christine Lustgarten. She explained the process and its advantages in about a 60 minute time frame over lunch one day. I was instantly intrigued. You mean I can continue practicing law and keep the aspects of my practice that I saw as the good things, i.e., assisting people through difficult times in their lives, explaining the process and the law, working toward an acceptable resolution, and eliminate all of the bad things that typically go along with domestic work? No way! I had to learn more. I was so excited about this prospect that I flew to Virginia a few months following that lunch for a three day collaborative practice training. During the training, I heard countless accounts of attorneys who had made the switch from litigated domestic cases to collaborative law. The main reason, it just makes sense.
In effort to offer collaborative law to more Nebraskans and to make the practice more uniform in Nebraska, the Nebraska Academy of Collaborative Professionals is beginning the process of seeking adoption of the Uniform Collaborative Law Act (UCLA) in Nebraska. To learn more about our efforts or about collaborative law, please see our website: http://www.collaborativedivorcene.com/