Posted on July 25, 2012
Over and over again, I have been told by my clients at the end of the collaborative process that they were satisfied because they felt included and empowered. As a lawyer in my matrimonial litigation practice I focus primarily on monetary issues. These issues are not unimportant to my clients but not always of primary concern. I often hear that a key variable with clients seems to be “was I listened to fairly?”
Clients are understanding what lawyers have long realized and that is that fewer than one out of ten cases are resolved by a Judge. Settlement in matrimonial matters is much more common than trials. Nonetheless, the Court system and much lawyering are built around an adversarial mind-set that permeates attitudes, habits, and institutional support. The prevalent attitude in a litigation mind-set is that “I will win-you will lose. Winning is beating you. ”
Collaborative Family Law is a new, distinct and unique dispute resolution process option. It allows for the active participation by the spouses. Four-way settlement conferences involving both spouses and their respective attorneys as the principal means by which communication and negotiation take place and agreements are reached is the model. The emphasis is on the words common goals and settlement. The downside of emphasizing settlement is that if the odds of settlement success are low, the client pays for all lower levels of conflict resolution and then for the inevitable Court process as well. But with an avoidance of the resort to litigation, or even the threat of litigation, the chances for attaining settlement are enhanced.
While there is a possibility for additional costs if pre-court efforts are not successful, I believe that the possibility of resolution is worth the price. Non-adversarial efforts are less costly and, if successful, may keep the conflict contained or even change the way the parties perceive each other and interact so that long-term benefits are possible.
Conflict heightens divorcing people’s desperate grasp for control over their lives. People fear that lawyers will accelerate this loss of control and serve as deal breakers who increase hostility between divorcing spouses. A goal of the collaborative process is to empower the spouse to make informed decisions for themselves that include being able to deal constructively with the financial reality of divorce.
The collaborative approach is a team approach. The parties work on identifying and achieving common goals: identifying the legitimate interests (i.e., needs, concerns, values and objectives) of both parties, and finding resolutions which meet the interests of both parties if at all possible. This makes people feel that their concerns are important and recognized.
Collaborative participants can also control the rules of the process to a large degree. Participants can choose between two hour, half-day and all day sessions, and whether to reach out to other collaborative professionals as needed. This power to custom design the dispute resolution process is very comforting for many people who do not like the one-size-fits-all approach of the Public Court system.
The collaborative process affords spouses the opportunity to sit down together with their collaborative attorneys within days or weeks at most. The entire process can be over in hours in simple matters or in a few weeks for more complicated issues if the parties are willing to focus and do the necessary work. This quick resolution allows people to move on with their lives in a relatively short time. In a litigation setting, it often takes 6 to 24 months to obtain a trial date for unresolved issues. In the collaborative process people can use their time efficiently. Any Courthouse regular will report that much of the time on a hearing date is spent waiting for the Judge to hear the case. The Court waiting time is emotionally and financially draining. Clients are frustrated by adjournments and postponements. Lack of quick resolution can result in not receiving necessary support or in further family instability and conflict. Many settlements occur in the hallways and in Courthouse cafeterias. Many of these settlements might not occur without the fear of the risks of a litigated result. The collaborative setting offers a client a choice as to the timing, setting and atmosphere of the settlement discussion. It also gives the spouses another buffer to attempt settlement before investing the financial and emotional resources in undertaking the risks of a trip to Court.
Parties often divorce due to communication problems. Settling divorce issues through litigation or direct attorney negotiation rarely improves those dynamics – actually they often get worse. Working together collaboratively as a team provides more effective communication. The environment is less stressful because the spouses know that they are working toward common goals. Less stress facilitates better communication.
As a lawyer I too am benefited by the collaborative process. I experience higher consumer satisfaction with the collaborative process over Court litigation. Though collaborative law is not a panacea it is a new, vibrant and vital option to the traditional litigation arena.