A Paradigm Shift to Collaborative Law

Resolving family law matters often includes a lawsuit with a plaintiff versus a defendant or a petitioner versus a respondent. By the very nature of the style of the case, it is adversarial. While there are numerous benefits to both practitioners and their clients by opting for the collaborative process, family law practitioners often find it difficult to switch gears and settle into the mental state needed to be successful advocates for their clients in the collaborative “ring” when the threat of litigation is off the table — especially litigators who have spent their entire careers advancing cases from start to finish and preparing clients for a courtroom battle in the event settlement negotiations go south.

Does a Resolution Have to Be Adversarial?

The answer is no. Collaborative law, unlike traditional litigation, approaches family law issues from a different and seemingly common perspective anchored in mutual self-interest. 

In traditional litigation, the parties and their respective counsel seek to find out about their own side and the other side of the lawsuit largely through the discovery process. In most cases, it is relatively easy gaining access to the facts you need to discover on your side of the lawsuit. The challenge comes in uncovering all there is to know about the other side of a contentious lawsuit and the facts that often only come to light when litigation is threatened or pursued. Thus, in the traditional litigation arena there is an underlying need and ongoing pressure to complete a more formal discovery process, which often includes interrogatories, requests for production of documents, requests for admissions, depositions and even subpoenas being issued before settlement negotiations may even begin. More often than not, it also unfortunately becomes necessary to file motions to compel and seek court orders to force a party to cooperate and participate in the discovery process, not only to prepare, but to advance a case towards a timely and final resolution. As a result, trying to “simply” find out what the other side has and even what they want is a mystery to be solved often by flashing or flexing a practitioner’s litigation muscles.

In collaborative law, the parties begin the process on the premise that full-disclosure and a free flow of information between the parties will propel their case toward a more timely and satisfactory resolution. The parties share their wants, needs and interests openly as they explore their options. The parties are able to do this in what most see as an emotionally safe space with assistance of a team of trained professionals who help them maneuver through the collaborative process and navigate toward a more tailored resolution to their family law matters without the threat or fear of being forced into the courtroom to defend themselves.


What Is Collaborative Practice?

The International Academy of Collaborative Professionals (IACP) defines collaborative practice as “a voluntary dispute resolution process in which clients resolve disputes without resort to any process in which a third party makes a decision that legally binds a client.”1

In general, the collaborative practice is a voluntary process in which the parties and counsel contract to follow certain protocols when negotiating settlement of a dispute.2 At the heart of the process is the agreement that collaborative attorneys will be hired pursuant to limited scope representation agreements. If settlement cannot be reached, the parties may pursue more traditional litigation in court to resolve their differences; however, their collaborative attorneys are required to withdraw from representation.

The IACP defines the core elements of each party’s commitment to the collaborative process are to:
Negotiate a mutually acceptable resolution without having courts decide issues.
Maintain open communication and information sharing.
 Create shared solutions acknowledging the highest priorities of all.3

Collaborative law may appear to be odd, less professional, conflictual and even dangerous to those who are not familiar with its techniques. However, the Tennessee Supreme Court has officially recognized collaborative practice and issued Tennessee Supreme Court Rules Rule 53, effective April 1, 2019. 

What Does the Process Involve?4

  1. After deciding that the family law matter is appropriate for the process and that the parties and their respective attorneys will follow the requirements, the clients sign a participation agreement. The participation agreement describes the nature and scope of the matter.
  2. The clients voluntarily disclose all information that is relevant and material to the matter to be resolve
  3.  The clients agree to use good faith efforts in their negotiations to reach a mutually acceptable resolution.
  4. Each client must be represented by a collaborative lawyer whose representation terminates upon the undertaking of any proceeding as defined in the IACP Ethical Standards.5
  5. The clients may engage mental health and financial professionals whose engagement terminates upon theundertaking of any proceeding; and
  6. The clients may engage other experts as needed. 

Breaking Down the 10 Steps of the Process

  1. Beginning the process and selecting the experts. In addition to the lawyers and the clients, experts are also hired.  The types of experts vary depending on the needs of the parties and the matters to be addressed in the case. It is most helpful to engage a neutral, mental health expert to participate in the process and act as the “facilitator.” The job of the facilitator is to: meet with the parties; learn about their history; uncover the nature of the relationships in the family; become aware of triggering situations; and begin a discussion of the wants, needs and desires of the parties. The facilitator will prepare the agendas for the joint meetings and work with the lawyers and parties when communication is strained. It is also very helpful and often necessary to have a financial neutral participate in the process. This person will gather the financial information that is needed in the case and will prepare income expense statements for the parties. If a valuation expert and/or a forensic expert is needed, the parties will engage them jointly. In some cases where children are involved, a child specialist may also be beneficial. The participation agreement is then signed by the clients. Confidentiality agreements are also signed by the parties with the professionals. When the lawsuit is filed in the collaborative setting, a notice is to be filed with the proper court stating that the parties have agreed to use the collaborative process. 
  2. Discussing goals together. Early in the joint meetings, the parties identify their goals and they discuss their interests. The sharing of the goals and interests allows the other party to hear what is truly important to the other side and why it matters to them. Among goals that are often revealed is the hope to get through the process with the least amount of animosity for the other party and with the ability to move forward peacefully with each party’s own respective lives. Other goals often include reduced costs, privacy, mutual respect, faster process and finality.
  3. Gathering the needed information. The needed information includes the documents that define the parties’ assets and liabilities in a divorce case. The amount of expenses and the sources of income are also necessary to address any support issues. If assets need to be valued or appraised, gathering the information and documentation needed for the assets to be valued is undertaken at this stage. If children are involved, complete information regarding their health, education and welfare should also be relayed and collected at this stage in the process.
  4. Reviewing the gathered information together in joint meeting(s).
  5. Problem solving. After having defined the wants, needs and desires of the parties in defining their goals, the next step involves brainstorming all of the possible options for resolution of the outstanding issues to be resolved in a free and nonjudgmental setting. The possibilities are recorded and shared. Criteria can be established to ultimately evaluate the options.
  6. Choosing the final options to conclude the case.
  7. Preparing the necessary documents to finalize the agreements reached. Agreed Orders can be filed along the way if desired.
  8. Signing a joint sworn statement of assets and liabilities and sworn statement of income, if financial disclosure is involved.
  9. Filing the necessary documents with the court to conclude the matter.
  10. Getting the agreements approved by the court with one or both of the parties present, if necessary. 

Other Helpful Information and Best Practices

Inherent in the collaborative process is the confidential relationship with the client and his or her attorney.  Attorneys and their clients may meet before each joint meeting with the group to prepare for the next steps. Each lawyer will inform his or her respective client of their legal rights and responsibilities and advocate for such throughout the collaborative process.
It is often helpful for the neutral professionals to speak together or separately with attorneys (in person or on the telephone) from time to time at the onset of the case as well as before or after joint meetings without the parties present to gauge where everyone is at in the process and prepare for future sessions. The experts may choose to meet with the parties together or alone to assist with moving the matter forward. If the collaborative process breaks down, mediation can be scheduled. The lawyers do not have to withdraw under such circumstances, as mediation is another dispute resolution process. It is only if litigation ensues that withdrawal is mandatory.
It is important to have a clear agenda for each meeting with time allocated to each issue to be addressed during the joint meeting. Minutes are another helpful tool that may be used and distributed after each meeting.
Practitioners in the collaborative family law area vary in opinion as to who may benefit from this joint problem-solving process. However, most agree that if there has been a history of domestic violence in the family, the safety of the parties and the family should be addressed carefully and at the forefront of the case before signing on to the collaborative process.

Conclusion

Collaborative practice should be viewed as another alternative method in a practitioner’s toolbox to resolve issues in family law practice.  Just as mediation has become well-recognized as a viable and now embedded part of the family law code in Tennessee and ordinary in practice, there is a place and a role that collaborative practice may play in the successful resolution of many family law cases. It is easy to see how a process rooted in open and sincere communication of each party’s wants, needs and interests combined with the assistance of neutral professionals and the advocacy of experienced counsel can lead to better and more lasting results as well as more stable and productive relationships between the parties long after their participation in legal process has concluded.
 



MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as president-elect of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.

NOTES

  1. International Academy of Collaborative Professionals (IACP). “IACP: Standards and Ethics,” 2018 (Definition initially adopted by the IACP Board of Directors on Oct. 13, 2011, and amended on June 21, 2017.) See also, ICAP, “What Is Collaborative Practice?” available at https://www.collaborativepractice.com/what-collaborativepractice (last visited July 22, 2019).
2. See Marlene Eskind Moses and Irwin J. Kuhn, “Collaborative Divorce: A Case Study,” Nash. B.J., April 2013 at 10.
3. International Academy of Collaborative Professionals (IACP). “Collaborative Practice Knowledge Kit,” 2006, available at https://www.collaborativepractice.com/sites/default/files/CP-KnowledgeKi... (last visited July 22, 2019).
4. See The Middle Tennessee Collaborative Alliance (MTCA). “The Collaborative Divorce Process,” (2016) available at https://mtcollab.com/files/MTCAbookletHIGH.pdf (last visited July 22, 2019).
5. International Academy of Collaborative Professionals (IACP). “IACP: Standards and Ethics,” 2018, available at https://www.collaborativepractice.com/sites/default/files/IACP%20Standar... (last visited July 22, 2019).
 

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