Law Tips: Collaborative Law, P1: Mutually Advantageous Solutions

The way it works: Because the focus is not on personal victory, but on mutually advantageous solutions, there is a responsibility to make sure everyone comes out of the process with dignity and life intact.

Thousands of lawyers around the world are now trained in the practice of Collaborative Law, a peaceful and private conflict resolution process. To provide a window on this new piece of the legal landscape, Claire Emswiller Short, a Collaborative Law professional with Emswiller, Williams, Noland & Clarke of Indianapolis, is joining us at Law Tips. She begins this series with an overview of what Collaborative Law is and how it benefits the participants:

What is Collaborative Law?
Collaborative Law is a voluntary dispute resolution process in which parties settle without resorting to litigation. I am focusing here on Collaborative Law as it is applied in the divorce context but that by no means limits this form of alternative dispute resolution to the family law sector. Collaborative Law was developed and spread as a “smarter divorce” but the concepts and tools can and have been adapted to assist with other areas of civil dispute. (Ms. Short discusses applicable areas where collaborative tools could be developed in a later article in this series.)

The shift to the collaborative paradigm and away from the litigation paradigm focuses the parties exclusively on the work of settlement in an interest-based negotiation scheme. While settlement certainly occurs in the litigation model of divorce, the threat of being “hauled into court” is removed as the parties and attorneys commit themselves to the work of a negotiation and problem-solving based process. Instead of asking “what can I get?”– the parties are directed to determine “what do I need to continue my life as a single person in a healthy, sustainable way?”

It is not based on “legal positions,” but is based on “life interests.” This is especially beneficial when there are minor children involved. The family itself does not cease to exist after a divorce; it just becomes a different kind of family. The collaborative process allows the parties and their attorneys to be creative and open about what each party needs separately to be able to function as this new form of family in the most mutually advantageous way possible.

Benefits of the Collaborative Process in Family Law
While a Collaborative process divorce is not the best fit for everyone, it does come with many benefits when used in the appropriate setting. First and foremost is the benefit of control. The divorcing parties identify the issues, decide the relevant information, determine the best interests of their children, settle on how to divide their belongings and outline how their relationship will work in the future. This saves time, money, and a tremendous amount of stress for everyone involved. That is not to say that the process is stress-free, it is still work and emotionally tolling work at that, but the work yields more extensive and more sustainable results.

In a traditional divorce, the parties are usually not communicating directly so the discovery process is much more labor intensive and expensive than it probably needs to be. The attorneys, making sure they do not miss anything, will request any and all information that could possibly have any relevance to the case. This usually results in thousands of pages of documents and an enormous expense for the client that may not be in either party’s interest. With the Collaborative method’s information sharing, neutral experts, and group meetings, the parties avoid the duplication of efforts and the tremendous amount of attorney fees incurred for discovery, trial preparation and multiple hearings.

Also, because the process is participant driven, the parties are invested in the resulting settlement agreement and can take ownership over its contents. The settlement agreement ends up being a better product that rarely requires modification or further litigation over interpreting its contents. Even if post-dissolution issues do occur, the parties can agree to first attempt to resolve them through the Collaborative process, utilizing the same professionals, so everyone is already familiar with the circumstances of that particular family.

Another important benefit is the preservation of the relationship. In a Collaborative divorce, the parties are much more likely to be able to maintain a healthier, cooperative, and effective relationship after the marriage is over. A Collaborative participant must listen to the hopes, fears, and interests of the other spouse and must be able to express the same. While a person may feel a momentary rush of satisfaction when watching his or her spouse squirm during a tough cross-examination, there is no way around the fact that in litigation, neither party makes the decisions. A judge, a complete outsider, makes all the important family decisions regarding the children, the property, and how the clients will live a large portion of his or her lives for a stretch of time.

Sitting down at a table together makes participants examine and listen to each other. This process contains a responsibility to acknowledge and account for the issues that each individual will face after the marriage is over. Because the focus in not on personal victory, but on mutually advantageous solutions, there is a responsibility to make sure everyone comes out of the process with dignity and life intact.

Break Time. But join us again when Claire Emswiller Short gets into the real work in a Collaborative divorce. She talks about coming together to sift out each party’s interests pertaining to the resolution issue at hand; as well as her perspective concerning the impact that preparation for these meetings can have.  

Meanwhile, if you are interested in Claire’s CLE presentation on Collaborative Law, ICLEF has a few Video Replay Seminars of,Epic Change: The Evolution of the Legal Profession.” Simply Click Here and we’ll guide you through the easy steps to enroll.

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About our Law Tips faculty participant:
Claire Emswiller Short, Emswiller, Williams, Noland & Clarke, PC, Indianapolis, is a third generation attorney, following in the footsteps of both her grandfather, Byron Emswiller, and her father, Kent Emswiller. She practices in the areas of estate planning, estate administration, estate/trust litigation as well as family law. Her family law practice includes divorce, post-decree modification, paternity, child support/custody, premarital agreements and she is a trained Collaborative Law professional. She also is devoted to assisting families or individuals develop plans and solutions for the care of family members who are aging, or have special needs, such as in the mental health or substance abuses areas. She  has substantial experience with guardianship proceedings and long term planning in trusts and adoptions.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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