Bar News - November 19, 2010
Family Law: Collaborative Divorce: Resolving Disputes Respectfully
By: Catherine P. McKay and Samuel Marwit
Family law practitioners in New Hampshire face many challenges. With the budget cuts in all of the state’s courts, family law clients are faced with significant delays. For many, this means months without temporary orders on parenting or support. For others, it means more than a year’s wait for a final hearing. Family lawyers and their clients must consider alternative dispute resolution (ADR) techniques to avoid these significant delays and resulting harm to the parties and their children. Collaborative law, as its name implies, allows spouses, their lawyers and other professionals trained in the collaborative method, to work together for a customized solution that will benefit the entire family. It also allows families to avoid the court system altogether.
|Catherine P. McKay
Collaborative law fills an important gap between divorce mediation and litigation. For all its benefits, divorce mediation has some distinct limitations. For instance, in cases in which there is little to no lawyer involvement in the mediation process, clients sometimes regret their agreements after learning what their legal rights are. Of course, as any mediator will tell you, there are also challenges when attorneys are present in the mediation process. Some lawyers continue to engage in unproductive adversarial posturing during mediation which undermines the likelihood of success. Collaborative law provides clients with all the benefits of mediation plus legal advocacy with lawyers that are trained in the collaborative law process and whose sole interest is the successful resolution of the case.
Collaborative law is a voluntary, contractual ADR process for parties who seek to negotiate a resolution out-of-court with the help of collaboratively trained lawyers and professionals, rather than having a ruling imposed upon them by a court or arbitrator. The lawyers further agree that they will not represent that client further if the matter is not fully resolved in the collaborative process. Known as the "disqualification clause," this can be a scary proposition for some family law practitioners. Why would a family law lawyer sign an agreement limiting his or her involvement in the case? That lawyer has realized it is best for their clients to resolve their disputes privately, with creative solutions focusing on what matters to the clients. Without the disqualification clause in a collaborative law agreement, the commitment required by the parties and their lawyers to negotiate a resolution out of court is absent. The threat of seeking judicial assistance is removed from the collaborative process, allowing the parties to focus on resolution, not trial preparation. The collaborative law participation agreement is really just an agreement to provide unbundled, limited-scope services.
New Hampshire family lawyers have been using collaborative law to resolve their divorce and family cases since 2000. Today, collaborative law has transitioned into collaborative practice, and expands the collaborative law process to include mental health and financial professionals, and child specialists and coaches, if needed in a particular case. Using professionals in appropriate cases makes for a more efficient and better outcome. Their involvement recognizes that divorce is not just a legal problem.
During the divorce process, the entire family is in turmoil. Communication skills are often impacted by fears about the process and the changes to come. It is inevitable that all of this turmoil will impact the children. Divorce lawyers must deal with emotion, but in collaborative practice, they don’t have to do it alone. They have the help of mental health professionals, filling the roles of child specialists or coaches.
Licensed as mental health professionals, coaches have special training in the collaborative process (and often mediation) and bring appropriate skills to the table, such as constructive communication, child development, family dynamics, and co-parenting techniques. The coach helps participants prioritize their concerns, process their feelings and differences in healthy ways, and stay focused by neutralizing or minimizing destructive emotions. The coach also works with the couple, their attorneys, and their children, to provide them with tools for positive co-parenting in their post-separation lives. The coach’s psychological expertise supplements the attorney’s legal expertise, allowing participants to move through this difficult life change with dignity, mutual understanding, concern for their children’s welfare, and hope for their own futures.
By determining the client’s "hot buttons," the coach assesses the client’s ability to handle conflict, then helps the clients learn to manage those hot buttons and reduce emotional responses. The coach addresses a clients’ needs and concerns in the collaborative process and will help the client to focus on identifying both long- and short-term goals, which parties share with the collaborative team. After the collaborative process is concluded, the coach is not permitted to provide therapy services for the clients, but is permitted to be a resource for the clients and to assist with the decisions made in the collaborative case. In some cases, each party has a different coach, while in others the coach is shared.
The mental health professional is sometimes involved in the case as a child specialist instead of a coach. The child specialist offers guidance and feedback to the parties about their children’s best interests and will often assist in preparing a parenting plan. If needed, the child specialist can meet with the children to help determine what schedules would work best for them. If the parties have older children, the child specialist might discuss where the children want to live. Similar to the role of a guardian ad litem in a litigated case, the child specialist can offer much needed information to help create the best possible parenting plan for the children.
The role of a financial professional in a collaborative case can be significant. Especially in long-term marriages, we often deal with varied proposals for child support, alimony, and asset division. The financial professional can help the parties project their financial futures and determine how each will likely fare over five or 25 years under the various proposals. This can be very helpful to parties who are trying to balance the level of income between their respective households. A financial professional can also help the parties prepare budgets and figure out how to live within a budget. For a spouse who has never handled the family finances, this budgeting support can be critical to drafting a financial agreement that works.
In today’s tough economy, parties look to preserve their assets and don’t want to waste their money on expensive litigation fees. Collaborative practice offers those parties the ability to participate fully in their divorce process, spend less money on legal fees (even considering the cost they would need to pay to the mental health or financial professionals), and complete their divorce process in much less time than they would in the family courts.
The next time a client asks for a referral to a divorce attorney, consider referring them to a collaborative divorce professional.
See www.CollaborativeLawNH.org for a list of trained professionals.
Cathy McKay is a partner at Parnell & McKay in Derry and N. Woodstock and has served on the board of the Collaborative Law Alliance - New Hampshire since 2001.
Sam Marwit, Ph.D., is a clinical psychologist. He holds Diplomate status with the American Board of Professional Psychology and professor emeritus status with the University of Missouri-St. Louis. He now serves on the Board of the Collaborative Law Alliance - New Hampshire.