The Definition of a Sucessful Collaboration
The mark of a successful collaboration is more about the how consensus is achieved and less about what. Collaboration is defined as working together or the act of working together with one or more people in order to achieve a common goal by sharing knowledge, learning and building consensus. Success is achieved when each team member contributes to the outcome and participates fully in the process.
In a collaboration that I recently completed, the Collaborative professionals worked in sync with the needs and interests of the clients making their timeline for resolution unique to their family. There were bumps along the way; however, since every team member was vested in the process, the Collaborative model provided an opportunity for resolving conflict in a more efficient manner. We helped the clients find their most effective voice to achieve an acceptable outcome. The day after my client signed the agreement she called me to say that it was the first time she had slept in on a school morning while their father prepared and took the children to school. She rested peacefully knowing that the children were going to be fine. She was woken up by her husband’s doorbell ring, who had came over to bring their children’s stuff that was needed for their time with mom. They exchanged good mornings at the door with a new significance. They both realized at that precise moment that they had all landed ok and this was the start of their new normal. Some mornings will be better than others but as co-parents they can embrace and share the good times and work together to resolve the more challenging times.
Hearing this only confirmed my commitment and passion for practicing in the Collaborative model. It was less about the what and more about the how that made all the difference in this family’s lives moving forward.
Motivations for Working Collaboratively
Some thoughts about my own personal motivation for working collaboratively and how this motivation has been tapped to build my own collaborative practice.
I have feet in both the collaborative and litigation world. Recently I have had a long-running collaborative case stall, and have had a litigated case taken out of the hands of the attorneys because the clients wanted to take control of their outcome. These cases together make me remember how strongly I believe that collaborative practice is, at its best, the superior mode, and that the clients themselves have great responsibility to make the most of the process. Educating clients to the demands of the work – asking them if they are really up to the challenge of doing it themselves, with the team as a guide, and not having a judge do the work for them – is essential in having as many collaborative cases end as well for the clients as possible.
I see in my attorney for children work the negative effects on children in litigation. These negative effects continue and worsen after the divorce as parental hostility has only hardened and deepened through its exercise in litigation. This was an underlying motivation for me to move toward collaborative in the first place, but not enough of a motivation to stay the course in difficult collaborative cases without more. It is hard for me to really let go of the outcome. To let clients be where they are in the process and let them stay there (stuck, it appears to me) if that is where they need to be. So while my motivation continues to be doing good work, helping people to find the least toxic path for family dissolution and instead find interest-based solutions, it has broadened to helping clients to internalize the merits of the process to bring them to a positive conclusion, and to helping me understand better my role as guide.
Drawing in clients to the collaborative process is the easy part – it is exciting to describe something so positive. However, as the cases unfold, and get stuck and clients get frustrated, and wonder why they in are in the process in the first place, having clients with a learned collaborative core is a goal. And having collaborative counsel without skin in the game, but with skin in the process, is another one.
How Collaborative Divorce is Different
Settling is Better Then Fighting in Court
I am a fan of settling divorce cases amicably. In any venue, in any way– if people can settle in a way that makes sense to them, that is good news for them and their families. All lawyers who work with people in divorce should, and good lawyers usually do, make every effort to settle cases before a judge hands down a decision after a trial. People may engage in a common effort to reach a resolution in a cooperative rather than competitive way in any negotiation process. However, not every case that settles this way is a Collaborative case.
Collaborative Practice Expands Settlement Opportunities
Collaborative Practice creates a safe space inside which parties hold frank and open discussions designed to cultivate a lasting resolution that meets the primary concerns of all parties. That safe space, or safe container, is one all participants — clients as well as lawyers and other professionals — trust and feel is fair. The absence of any threat of litigation is a critical factor in creating this sense of safety inside the Collaborative process. When the possibility of litigation lurks, even in the background, then people inevitably negotiate in the shadow of the law, meaning that the possibility of imaginative solutions based on the personal reference points of the parties is almost non-existent. Instead, negotiations focus on what might happen in court.
Collaborative Practice Creates a Safe Space to Talk
The participants’ confidence that the container is safe encourages imaginative, non-adversarial dialogue and stimulates conversation outside the legal paradigm. This safe space is created by the Collaborative contract (called a participation agreement) which holds participants to the Collaborative commitment and contains the disqualification language prohibiting the lawyers from going to court. The safe space is what allows participants in the Collaborative process to negotiate outside the shadow of the law if they should so choose.
Collaborative Practice is People-Oriented
Law school trains lawyers toward a rights-based orientation to conflict resolution. While there is nothing wrong with considering the rights and obligations created by our system of law, the training also shifts lawyers away from considering values that preserve interpersonal harmony, and away from maintaining relationships, attending to people’s feelings and needs, and preventing harm. Collaborative Practice differs from traditional lawyering in that it explicitly attaches importance to intrinsic characteristics such as interpersonal, emotional, psychological, and relational concerns. It elevates the importance of these values in the law and consciously trains lawyers to effectively deal with them. Without ignoring the rights and obligations created by our system of laws, Collaborative Practice creates an explicit place for intrinsic values as the bargaining table.
Collaborative Practice Aligns Financial Interests of Lawyers with their Clients
Collaborative Practice also is unique in that it aligns the financial interests of the lawyers and other professionals with those of the parties and incentivizes them to work toward creative solutions. This alignment of interests between clients and professionals, particularly lawyers, creates, “Unprecedented creativity and resolutionary energy in both attorneys and clients.” (Pauline Tesler). Outside of the Collaborative process, the incentive for attorneys to work toward settlement is much lower. In a traditional negotiation and in litigation, lawyers continue to charge fees whether or not the case settles. In fact, from the lawyer’s financial perspective, settlement may not be the best option.
Collaborative Divorce is More Than Settling “Collaboratively”
People who choose to use Collaborative Practice to work through the issues surrounding their divorce or other legal conflicts, have the opportunity not only to get through the conflict or negotiation to the other side but to take a big step toward healing the conflict as well. For all the above reasons, Collaborative Divorce offers much more guidance and support than settling the dispute in a more traditional negotiation.
Is There Such a Thing as a Good Divorce?
You and your spouse are facing a divorce. You may agree that you will get a divorce. Or either spouse may say, “The marriage is over and I want a divorce.” Whether you initiate the divorce, your spouse initiates it, or it’s a mutual decision, you are facing a life-changing event that can be sad and difficult for parents and children. Your divorce can be a good one if both spouses work toward a fair deal with minimal acrimony.
New York State has a “no-fault” divorce law, so one spouse can get a divorce even if the other is reluctant or opposed, as long as the moving party can say, under oath, that the marriage has been irretrievably broken for six months or more. This means that most couples can avoid legally blaming one another for the end of the marriage, or the cost of a legal defense if one is wrongly accused. .
However, you must still divide your marital assets, and resolve custody and support for your children.
A good divorce is possible if you are reasonable, realistic, responsible. Some ways to prepare for the main issues:
Finances. Review your finances. Be informed about all of your assets, income, and debts. Both parties should know their incomes, their bank accounts and stock accounts, if any; their health insurance and life insurance policies; the expenses of their home or apartment; and their monthly household costs. Living expenses usually go up in a divorce, as one spouse finds a new place to live. Knowing how your money is spent every month will help you manage the new costs, as well as help determine if one of you needs spousal support.
Residence. Decide whether one of you will remain in the marital residence, or if you both need to move, sell your residence, and find new places to live. You may love your home, but in a divorce you must decide whether this home really serves your needs and the needs of your children, and whether you can afford the cost of the home once you and your spouse are divorced.
Support. See an attorney and determine what support your spouse and your children may be entitled to. New York State law spells out the percentage of income that parents must pay to support their children until they are emancipated. Child support includes basic monthly support, health insurance and life insurance, unreimbursed medical and dental costs, child care, and may include “add-ons” like sports, music, tutoring, and college.
Spousal support is subject to the court’s discretion. If one spouse needs support to pay her or his expenses, the amount of such support will vary, depending on factors like available income, age, ability to become employed, and health.
Attorney. Hire an attorney who charges reasonable fees, who is realistic and compassionate, who answers your questions and explains your rights and responsibilities, and who assesses best-case scenarios about your goals and needs. References from knowledgeable family and friends are good sources for attorneys.
Remember, divorce means you are ending a relationship with your spouse and, and if you have children together, you are beginning another phase with a co-parent who lives elsewhere. At the same time, you are beginning a new life. A good divorce allows you to move forward without continuing anger and hostility and with the financial means to start again.
© 2013 Mary F. Kelly
From the Mental Health Point of View
As a psychotherapist with a specialty in divorce, I have witnessed the damage done to many families who had only the choice of a traditional adversarial divorce at the time of their separation. The litigation model has the couple facing off against each other and the goal of their lawyers was to win as much as possible for their clients. It’s all about the deal. While this approach works well in some areas where litigants won’t see each other again at the end of their case, this does not apply to moms and dads.
Fortunately today, divorcing couples have the option of Collaborative Divorce, which as its name implies, encourages couples to create an agreement that’s about the family, not only the deal. In order to raise healthy children, parents will be working together in the future to ensure their well-being. While older and adult children may be less dependent, they still count on their parents to relate responsibly to them and to each other.
It takes more maturity than most of us have initially to divorce in a sane and compassionate way. A good divorce requires a giant leap in self-control and in the ability to control reactivity. This is where the mental health professional on the Collaborative team makes a contribution. The lawyers work on resolving the legal issues of a marriage while the mental health or divorce coach team member works with one or both clients on the emotional, psychological and child-related ramifications of the dissolution.
The goal of the Collaborative Divorce team is to help you and your spouse come to a reasonable settlement, understand your financial future, meet the needs of your children and maintain your privacy. The most important result from the mental health perspective is that psychological and emotional damage to your family can be avoided or greatly reduced, rather than needing major repair work after a litigated divorce.
Collaborative Divorce is an excellent option. I hope you will consider it.
Five Reasons Why An Attorney Would Want To Practice Collaborative Law
A lot has been written about why a divorcing couple may want to consider using the collaborative law process rather than litigation. But why attorneys want to practice collaborative law? What benefits can they expect to receive? Here are five good reasons:
- Ability to offer clients more options – Divorcing couples are looking for attorneys who practice collaborative law because they want to work with attorneys who are committed to keeping them out of court. Clients have heard the nightmares of their friends and family members who get sucked into the litigation vortex and they know they do not want that for their own divorce. If an attorney treats every divorce case as if court intervention is the first option, they are going to lose many potential clients.
- Better relationships with clients – Collaborative lawyers have better relationships with their clients both during and after the collaborative divorce process. Divorcing couples are already hurt and angry. The collaborative law process helps to manage those emotions, rather than inflame them. This results in an attorney-client relationship that is calmer during the process and more likely to lead to referrals afterwards.
- Costs are kept down and the attorney is freed up to work with more clients – Contested divorce cases are expensive because the lawyers spend so much time waiting around in court, drafting motions, conducting depositions and negotiating from extreme positions. Collaborative divorces are more streamlined because both clients and their attorneys are committed to reaching an agreement. So, while an attorney may not earn as much in a single collaborative case as in a single litigation case, they are able to handle more collaborative cases at once.
- Clients are offered more privacy – A collaborative divorce appeals to high profile and high net worth clients who require discretion. Collaborative attorneys are not exposing clients to the risk of an open courtroom and the possibility that their motion or trial decision will be published for anyone to read.
- A chance to improve lawyering skills. – Traditional matrimonial attorneys are already good at settling cases. Collaborative law techniques improve and refine those negotiation and settlement skills. Collaborative lawyers are involved in good faith negotiations. This means they can be focused on listening and responding to the interests of their clients rather than the game playing of an adversary. By improving their skills, collaborative lawyer have more control over their caseload and the results that are achieved.
The New York Association of Collaborative Professionals, together with the law firm of Moses & Singer, LLP offers a free CLE entitled “Why Would An Attorney Want To Practice Collaborative Law?” If you are interested in attending this program or having us present it at your law firm, please contact us.
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