Law Tips: Collaborative Law, Part 3: The Future

Welcome back to our Law Tips series featuring Claire Emswiller Short’s practical insights on Collaborative Law. As a closing for this topic, she has a discerning look at the future:

Is Collaborative Law divorce what mediation was 15 years ago? Will it spread throughout the country and permeate into other areas of law for alternative dispute resolution? There is certainly a possibility.

To grow in Indiana, in the family law arena and beyond, the challenge lies in getting enough professionals interested, trained and actively educating their clients about the option of a Collaborative Law divorce. While it is believed by many to result in better outcomes for all parties when conducted successfully, there may be some attorneys and professionals who simply are not willing or not able to make such a paradigm shift in their own professions.

Fortunately, in family law practice, there seems to be no slowing down the continued stream of young professionals coming through the area. With the divorce rate in Indiana teetering between 49% and 50% the supply of work is pretty steady and rarely ends after the final decree. Exposure to the collaborative commitment to civility and cooperation and it’s process for achieving that from a client will not be difficult for a new professional to accept and embrace. They are not deeply invested with years of experience in the traditional models and the shift into collaborative practice will not be a dramatic overhaul of what they have become familiar. The challenge will come in the permeation into other areas of law and disputes.

One of the reasons that family law has been the medium for the Collaborative process is because the interactions between the clients are not done at arm’s length-and more than likely, there is going to be some sort of a continued relationship or interaction between the parties. That creates incentive and motivations for the required commitment to civility and cooperation of the process. Further, many of the interests align between the individual parties, so it is easier to find common ground on the important issues.

Labor/employment, family and partnership business disputes and restructurings, healthcare conflicts and construction claims may be other areas that could benefit from a Collaborative Law approach. Another area of law where there are similar characteristics is in estate and trust administration/ litigation, though the main challenge in this area of law is one of the most demonstrative examples of the type of challenge that would require a more collective effort by practitioners and professionals in the legal arena.

Trust/estate litigation can be a substantially costly endeavor for an individual, non-business entity, as is usually the party in these matters, and often, wronged parties are not financially able to address disputes. The inhibiting expenses come from the same sources as in divorce cases, just often on a multiplied scale depending on the number of family members involved: Mainly discovery/information gathering and valuation of assets.

For example: Decedent dies with an adult brother, and three adult surviving children. Decedent owned and operated a business that owned land, buildings, merchandise, services, and several other complicating factors for valuation and his brother was his second in command. Decedent leaves a will dividing his entire estate (including his business) equally to each child and to his brother. However, disputes arise about what would be considered an equal division, operation of the business, etc. and each party hires his own counsel. That is five attorneys who are each conducting his or her own discovery, communication, settlement negotiations, etc., with four other attorneys. Not to mention that if the dispute involves the valuation of assets, you have five different appraisals for each type of asset involved in the dispute (land expert, business valuation experts, and asset valuation experts).

So either the parties go ahead with traditional litigation and spend most of the estate assets on litigation expenses that may or may not save the business or, do nothing. And, because of the disputes, mistrust and discord that emerges, the business is unable to continue and the relationships between the parties and respective families are ruined.

This would be a perfect scenario for a Collaborative Law process. The parties could agree to hire one set of neutral experts, while discovery and information gathering could be streamlined and done more efficiently. The focus could remain on the true issues at hand with the option of addressing family rivalries and side disputes that may really be fueling the impasse that often standstills progress towards settlement. It will most likely save the future relationship of the parties as well as effectively preserving the estate assets.

The biggest challenge for growth in areas like estate/trust litigation comes back to enticing professionals in that area to make that shift and to be trained, but on a more difficult level. Here, since the repeal of the Indiana Inheritance Tax and the large exception amount reached for Federal Estate Tax, the stream of newly practicing attorneys into this area has slowed. There just simply is not as much work to go around to support a purely trust and estate practice. This means that those in this area are likely very invested in the old model in which they have probably been practicing in for a long time. It would be a tough transition to change this kind of professional’s mindset but surely not impossible

Again, the key is to educating practitioners, the judiciary, and the public of the advantages and possibilities surrounding this type of method. That is more likely to be achieved by the profession as a whole, not by individual practice areas.

Many thanks to Claire Emswiller Short for this intriguing look inside the ripening Collaborative Law arena. If you are interested in Claire’s CLE presentation on Collaborative Law, ICLEF still 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 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.

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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