Law Tips: Collaborative Law, Part 2: The Ground Rules

Some believe that Collaborative Law is a part of the epic changes in the legal profession being witnessed across the country. Claire Emswiller Short employs this process in her daily practice. She’s providing her insights on this new approach to conflict resolution in our latest Law Tips series. This week Claire takes you inside the workings of Collaborative Law, looking at the ground rules:

The Collaborative Participation Agreement
The Participation Agreement is the key to the Collaborative divorce. This Agreement specifies the guidelines for the process; the most important being that if the process breaks down, both attorneys must withdraw and any neutral experts utilized are also no longer able to participate. This includes any and all work products. The Agreement also spells out provisions regarding the exchange of information and confidentiality between the attorneys and clients.

The Agreement serves many implicit purposes as well. First, it keeps everyone vested in the interest based negotiation model. The attorneys are able to be advocate and discuss possible solutions freely and so are the clients. Impasse and breakdown do occur. But knowing that any progress that has been made, information exchanged, or settlement decisions reached will be lost if a party digs in his or her heels, can be a powerful tool to get parties to reevaluate and rethink disagreements.

The Agreement also makes it clear that each client must voluntarily disclose all relevant facts. If it is discovered that either party has attempted to hide assets or withhold information, then this also results in both attorneys and all experts being forced to withdraw.

The Meetings
The real work in a collaborative divorce is done during a series of meetings in which the two parties and their respective counsel meet together to discuss each party’s interests as it pertains to the resolution issue at hand. This means that everyone is in the same room, there is no neutral mediator, and the discussions are centered upon an Agenda that has been distributed and agreed upon before the meeting begins.

The amount of meetings and length of each one depends on the facts of the case and the needs of the parties involved. The meetings can be organized by topic or each set to a specific time period, whatever seems to work best for the individuals.

Preparation/ Goals and Commitments
The most important aspect of these meetings often takes place before they occur. It is imperative that the attorney prepares his or her client before these meetings. The attorney should make sure the client has a clear understanding of what his or her interests truly are concerning a particular issue and to consider what the opposing party’s interests or thoughts may be.

This requires more than simply going down the laundry list and determining the assets, debts and respective incomes of the parties. The attorney needs to guide his or his client through determining the end-game goals-“where do you want to be at the end of this process?” “What do you want your life to look like?”

Yes, it is important to address immediate issues regarding household bills and temporary parenting schedules, but it is up to the attorney to keep the client from getting hyper-focused on these immediate details and constantly redirect them to consider the big picture like the stability of their children or long-term financial security.

Ground Rules and the Agendas
Because there is an Agenda for each meeting, everyone is aware of what will be discussed. This eliminates the stick of dynamite that blows up a settlement negotiation because the information was a surprise to one party or a sensitive fact is brought up that has limited relevancy to the specific issue being discussed. Each party is prepared for the issues being addressed. There is no room to get off topic or bring up irrelevant facts because the attorneys have made clear that meetings are to follow the Agenda. Side topics that arise must be tabled to the next meeting so that they can appear on that meeting’s Agenda with plenty of prior knowledge.

Another major difference in the Collaborative divorce as opposed to traditional methods is the Agenda which can assist in containing a common but very volatile difference. Indiana is a no-fault divorce state, meaning that courts are permitted to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the respondent has committed a breach of the marital contract. While there are several benefits to this concept, it does substantially limit what history or information about the family is considered relevant.

Every divorce lawyer has a story of how the settlement negotiations blew up in the final moments over an old sofa or a Christmas CD. The issue is rarely about the worthless item the parties so suddenly find themselves unable to part with; it is usually an underlying hurt, distrust, or disappointment that has no place for discussion in a traditional settlement negotiation, so a spouse redirects those emotions into something completely unrelated.

In the Collaborative divorce, if a similar impasse occurs and the attorneys feel that there is something deeper creating the problem, then it can be put upon the Agenda as something that needs to be addressed or discussed. For example if an affair is involved, often the party that was cheated on just needs an opportunity to express his or her hurt, disappointment and anger and just have the other party hear them. However, by having it on the Agenda, both parties are prepared and they know it will be coming. So, no dynamite explodes and the attorneys can properly prepare each client for the discussion. The situation can be controlled, directed and hopefully productive in achieving a successful settlement.

Neutral Experts
Another unique aspect of a Collaborative Law divorce is that in this process only neutral experts are used. Meaning that instead of each party hiring his or her own experts to support positions and obtain more difficult information, the parties and attorneys agree on what neutral experts are needed and who will fulfill those roles. These types of experts include financial professionals, mental health professionals, and or child specialists.

Please note that these professionals MUST also be trained in the Collaborative Law Process and also must sign the Collaborative Participation Agreement (See Part 1.) signaling that if the parties decide to default to litigation, the experts must also withdraw along with the attorneys initially involved.  

We’ll break here until next week’s segment when Ms. Short returns to share her views on the future of Collaborative Law. 

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About our Law Tips faculty participant:
Claire Emswiller ShortEmswiller, 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.

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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