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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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. 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.

_________________________________________________________________________________

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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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.

_________________________________________________________________________________

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

Posted in Law Tips, News0 Comments

Law Tips: Hot Tips on How to Close the Deal to Your Client’s Advantage in Probate Mediation

Is this a feud or a crusade? How do you recalibrate the discussion to get to a reasonable value for an asset? There are sticky issues and elusive answers in any mediation. Brian Hewitt, AlerdingCastor Hewitt, LLP, is here to offer Law Tips readers his pointers gleaned from 20 years of experience in negotiating. Following are his tips on finding the sense of fulfillment your clients need in probate mediations.

Don’t Negotiate in 5’s or 10’s:
When you negotiate in 5’s and l0’s (such as in $5,000 or $10,000 increments) you will often give up ground by the end of a negotiation. Negotiate in 2’s or 3’s or 7’s and 8’s and you can grab two or three thousand dollars on each volley, especially on the last two or three volleys before a settlement.

“Invoke the Timeout”:
After the mediation has gone on for a while it is sometimes helpful to slow it down. If the other side is getting overly aggressive put them in “time out”; take a break, let them sit for a while. This can indirectly communicate you are there for the long haul or give them time to cool off if negotiations have become heated. You don’t have to announce you are invoking a timeout; just take one. This can also give your client a chance to collect his or her thoughts and take a deep breath.

Is this a Feud or a Crusade?:
Virtually every probate mediation involves either a nasty feud between long warring relatives or step-relatives or a crusade on the part of one party. Determine which it is. If the dispute is a feud, both parties have an ax to grind and an agenda that may cloud their vision and, in fact, lead to poor decision-making. If your client or your opponent’s client is simply on a crusade, you won’t change that thinking during the course of the day. Try to structure conversations and proposals that have the appearance of fulfilling whatever mandate that crusader seeks to accomplish. A crusader needs a sense of fulfillment. Find a way to provide it.

Russian Roulette:
Particularly when asset values are disputed, turn the tables on an offer. If, for example, your opponent offers you a piece of real estate as a part of an offer at a certain high value, flip the offer and offer it to them at the same value. This will quickly recalibrate the discussions so a reasonable value can be assigned to assets, the division of which is being negotiated.

I have to Have It:
In many probate mediations, there is at least one asset that at least one beneficiary “has to have”. I am consistently amazed when a beneficiary and their counsel actually announce they have to have that asset. When you announce you have to have a specific asset, you better open your checkbook. It seems like common sense that insisting you have to have a certain asset will increase the price, but many parties miss this seemingly obvious point. Instead of announcing you have to have an asset, avoid drawing attention to it. Try to get a value of that asset established for purposes of negotiation along with other estate assets so you don’t draw attention to the asset you want.

Demands are Not Offers:
Sometimes offers have been made before a mediation and sometimes they have not. At a minimum, each party should communicate their best case to the other parties before the mediation. Remember, however, a best case proposal is a demand, not an offer. It is not productive to begin a mediation that merely restates your best case or demand. That is not a negotiation and sets a horrible tone for compromise. If you want the other party to show some movement, show some movement yourself.

Beware the Condition Precedent or Subsequent:
Many final mediation agreements include either a condition precedent or subsequent. If you need to include such a provision, make sure of two things.

First, make sure that condition is a hill your client is willing to die on, because once it is made a part of the contract, a condition can be used either as a weapon or a shield.

Second, make sure the condition precedent or subsequent is carefully drafted into the settlement agreement. Unfortunately, I have seen several mediated settlement agreements fall apart later because of an unfulfilled condition or a poorly drafted one. Consider a penalty provision that increases the cost of settlement in lieu of a condition precedent or subsequent.

I appreciate Brian Hewitt providing his insights on important strengths and weaknesses to be aware of in probate mediations. Hopefully, you have some new strategies in mind as you begin solving your next communications dilemma for a client. Brian is a faculty member in ICLEF’s popular seminar, 120 Hot Tips in Estate,Trust & Probate Practice. If you could use 115 more tips, you’ll want to schedule this CLE either as an On Demand Seminar or Video Replay Seminar in your locale.

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About our Law Tips faculty participant:
Brian C. Hewitt is a partner in the Indianapolis and Greenwood, Indiana law firm of AlerdingCastor Hewitt, LLP. He concentrates his practice in estate, death tax and business planning and representation, probate, trust, guardianship, commercial and civil litigation, the representation of financial institutions and mediation.  He is a registered civil mediator, board certified Indiana Trust and Estate Lawyer by the Trust and Estate Specialty Board and a Fellow of the American College of Trust and Estate Counsel.

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

Posted in Law Tips, News0 Comments