COLLABORATIVE LAW, a new form of alternative dispute resolution that offers divorcing couples a way to resolve their differences with legal representation but without litigation, has made its way to NH and is piquing the interest of increasing numbers of attorneys.

The Collaborative Law Alliance (CLA) of NH—the group working to institute the technique in the state—is bringing Stuart G. Webb, the "inventor" of collaborative law, to NH to lead the CLA’s next training session on Monday, June 11. Webb, a Minnesota family lawyer, has practiced exclusively collaborative law since 1990.

In 1997, an attempt to develop a collaborative law community in NH failed, according to Honey Hastings, an Amherst family law attorney who has been involved in bringing this form of ADR to the state. But in the fall of 2000, a group of family lawyers began meeting to again develop a plan for implementing the collaborative law model in their practices. The group organized the first collaborative law training session in NH in December, which was led by Hastings and fellow attorney John Cameron, who also played a key role in bringing collaborative law to NH, together with Mass. attorney Rita Pollak. The three had been trained in the technique in other states. The NH training session offered lawyers the basic knowledge and skills needed to include collaborative law services in their practices.

The first training session attracted 29 NH family law attorneys and a second session in North Conway in April was attended by about 10 attorneys. Prior to the second session, there were 32 NH attorneys trained in collaborative law.

As interest in the model has grown, the collaborative law group has developed into the Collaborative Law Alliance (CLA). A non-profit corporation, the CLA has elected a board of directors, organized committees within the alliance, adopted bylaws and continues to plan training sessions to get other attorneys involved, according to attorney M. Betts Davis, one of the organizers. The group has also posted a Web site at www.collaborativelawnh.org.

According to Davis, the CLA is requiring that its members attend one of its training sessions; provisional members agree to go to the next possible session. New members must also be "sponsored" by existing members, meaning a current member must speak on the prospective member’s behalf as being well suited for the group.

The collaborative law model has gained popularity among attorneys and divorcing couples in Minnesota (where it started 10 years ago), California, Connecticut and Massachusetts. Although in its infancy in NH, the positive response from lawyers will hopefully mean that collaborative law will "take off" in the state, as well, said Davis. There are already two cases in progress that are using the collaborative law approach. "We (trained attorneys) are ready to go, now we just need the cases," Davis said.

"I think it’s going to be very well-received among people needing a divorce in New Hampshire. When people who are getting divorced need a lawyer, there’s a lot of feeling that lawyers can make things worse. That’s not a new idea. There’s a lot of support in the public for an option like (collaborative law)," she said.

The CLA’s June 11 session led by Webb will be held from 8:45 a.m. to 3 p.m. at Yoken’s/Comfort Inn in Portsmouth. The cost of the session will be $95 for NH Bar members; $135 for members of out-of-state Bars; and $80 for those who have already attended collaborative law training. Those in attendance who have already undergone training will not be eligible for CLE credits; for those who have not, 5 hours CLE credit, including 1 hour of ethics, will be available.

For more information on the session, contact Betts Davis at 742-4835 or at bettsdavis@mediaone.net or Margaret Sullivan at 527-9156 or at mms@mlolaw.com.

The accompanying article features a look at the collaborative law effort in NH, including comments on the technique by CLA members. The article originally appeared in the March 11, 2001 issue of the Portsmouth Herald Sunday and is reprinted with permission.

DIVORCE. A HOUSEHOLD disintegrates. What was ours often becomes mine or yours as partners lay claim to their 25-inch color television, their Whirlpool washer and dryer, their retirement account, their 10-year-old daughter and 5-year-old son. Anger motivates retaliation, revenge.

Lawyers are retained for litigation. Legal fees escalate. An extremely emotional environment ensues, and the stress of an acrimonious battle depletes everyone’s emotional and spiritual reserves. In the end, when the judge, determines the final outcome, no one wins.

But getting a divorce doesn’t have to be destructive. There is an option.

Collaborative law lawyers say they offer clients a "kinder, gentler way to negotiate" their divorce. The process begins with both spouses and their attorneys committing to resolve their differences justly and equitably without resort or threat of resort to litigation.

According to Portsmouth family law lawyer and mediator William Mason, most people and certainly all children would benefit if litigation were minimized.

"Families don’t belong in court unless court is the last resort," he said, adding that the courts are not designed for sensitive family issues.

"After both sides have battled it out, they finally say, ‘Yes,’ at a point when everybody is exhausted," Mason said. "It’s churned on for a long time, hurt everybody in sight. Collaborative law is a much less stressful way to get things done."

Collaborative law originated 10 years ago in Minnesota. California family law lawyers quickly adopted the process. Connecticut and Massachusetts have since tagged along.

Collaborative law found its way to New Hampshire via John D. Cameron, a Laconia family law attorney and certified marital mediator who sought a better way to address family issues that came into the courts. As the chairperson of the Family Law Section of the NH Bar Association, Cameron wanted to find an alternative to litigation. He learned of collaborative law and facilitated the first in-state training in December with Boston-based family law lawyer Rita Pollak and Honey Hastings of Amherst.

Proponents say the value of the process is multifold for both clients and counsel.

"Litigation is a furnace," Cameron said. "Its fuel is emotionalism and dollars; neither should be looked at as expendable resources."

On Jan. 25, 29 New Hampshire family law attorneys, including Cameron, Hastings, Mason and M. Betts Davis of Dover, formed the New Hampshire Collaborative Law Alliance.

The alliance’s goal is to soften the impact of divorce in order to create a win-win situation. But to do so, collaborative law lawyers and clients must behave differently. All parties agree to resolve conflict and reach agreement using cooperative strategies rather than adversarial techniques. There is an open, honest exchange of information. No one hides assets and every relevant fact that is part of the divorce is disclosed, from adultery to alcoholism. No one is entitled to say, "I refuse to tell you." It’s a team project. Threats like "You don’t like my offer; fine, I’ll see you in court" become "You don’t like my offer; fine, let’s see what else we can do."

There’s a savings in financial costs as well. Litigation proceedings involve hours of preparation time. For one hour in court, attorneys average an hour or more writing briefs, gathering data and organizing presentations. If witnesses or discovery hearings are involved, the time increases. Even a simple conference hearing with a judge or marital master to update the status involves court time. A 15-minute conference can take up to two hours. It is all billable attorney time.

Using collaborative law, the couple orchestrates their negotiations. They determine how much time is needed based on their willingness to replace tactical bargaining strategies with creative efforts to meet the legitimate needs of both spouses. There’s no room for recrimination and revenge. Anger and resentment are left at the door as partners focus on ways to resolve the issues rather than seeing one another as the problem and verbally attacking each other. The couple communicates, cooperates and compromises to develop the final agreement tailored to their unique needs.

Because the final agreement isn’t handed down by a judge, there’s a much greater chance both spouses will adhere to it.

"A lot of attorneys are burned out doing family law," Cameron said. "It can be dreadful. There are parties that are just after blood. Families come apart with that attitude. That vindictiveness lasts a long time and it affects kids embroiled in the battleground. They become the spoils of war.

"Collaborative law puts a different viewpoint on attorneys who are described by a variety of terms, most not favorable," Cameron continued. "It helps attorneys and helps clients keep away from warfare. It helps lower everyone’s stress level."

Collaborative law represents a new way of thinking for some lawyers. Pollak said, "I think it’s a big shift in how you perceive your role and use language, how you perceive yourself and your client, and how you interact with another attorney. It’s very energizing to behave in a more positive way."

Davis says she was delighted when she read about the initial training in a NH Bar Association newsletter.

"It was really wonderful news," Davis said. "Lawyers are stoked for the adversarial role. Some lawyers are enthusiastic about being adversarial, but even if not, they understand it as their role to work to their advantage. I miss collaboration, working with colleagues. It’s music to my ears to work with colleagues without playing hide the ball."

In litigation, one side tends to impugn the integrity of the other party. There’s name-calling, innuendoes, challenges. Litigation is a stumbling block to creative problem solving. Righteous indignation stops negotiation. It stops people from looking for answers. They’re no longer motivated to open the conversation to third or fourth options. In collaborative law cases, neither client nor counsel can say, "‘We’ll let the judge decide."

"In usual lawyering, you may be very respectful of the other person," Davis said. "You are open to discussion. You cooperate in working out a negotiated agreement, but you always have in the back of your mind if the spouse won’t make an agreement on one subject your client really wants, then you have to go open a can of worms you don’t want to, air all the dirty linen. That avenue is foreclosed. There’s a seachange in how you as a lawyer act as a lawyer."

The adversarial position is minimized, if not eliminated. In a real sense, the attorney is there providing advice, cheering the couple on because they’re working hard to cooperate, achieving fair results for both parties.

Some people say the process resembles mediation. Mediation, in its purest form, is designed to help people reach agreements that both parties can sign on to. The mediator is an independent, unbiased third person who works as a go-between helping clients reach compromise. The mediator has no investment in either side or particular agenda.

Currently the Strafford County Family Court offers a voluntary mediation program. According to Heidi Boyack, the family division administrator for Rockingham and Grafton County family courts, the concepts supported in collaborative law aren’t revolutionary.

"What’s more surprising to me is why they haven’t take off sooner," she said.

"Marital mediation hasn’t caught on here," Boyack said. "These ideas and alternate ways of settling disputes, it’s a matter of education. Most people don’t know it exists. They just go to court."

Mason agreed, saying, "Mediation is not getting the publicity that it should. It’s not in the forefront of people’s minds when they think about divorce."

Boyack said a marital mediation board formed in the 1980s but never really took off. Current case managers in the family division are not really mediators, she said. They help with paperwork and with a pro se divorce, where a couple works together on an uncontested divorce to write their own agreement.

"They reduce the agreement to writing," Boyack said. "They don’t really mediate."

But New Hampshire’s Superior Court is working toward implementing a court-sponsored mediation process.

Judge Walter Murphy, chief justice of the New Hampshire Superior Court, said the program includes a requirement for parties with children to get counseling to deal with the effects the divorce will have on all family members. Mediation training involving both lawyers and laypersons is underway, he said. The goal is to lessen the stress.

"Some cases of domestic relations, mostly divorce cases, the parties just can’t get along. They don’t speak. We’re tying to give them some manner to mediate rather than a full-out war in a courtroom," Judge Murphy said. "We’re trying to give people more of a chance to get their problems resolved with more input by them at an earlier time."

Though mediation has been around and has assisted some people, those involved in collaborative law note significant differences between their process and mediation.

"Some lawyers say this is nothing new, we’ve been negotiating agreements forever," Davis said. "But we do think this is a little bit different. We think it’s better."

Mediators aren’t typically lawyers. Collaborative law lawyers represent their clients using both mediation and advocacy skills. They run interference for their client. And in cases involving domestic violence, attorneys provide a certain level of protection and they can level the playing field. Whether in a courtroom or in a conference room, emotions flare now and again. Attorneys help calm tense nerves.

"I’m encouraged that the movement is trying to make this more human," Boyack said, referring to collaborative law. "But it won’t revolutionize the divorce process unless people avail themselves [of] it."

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