A healthy, respectful alternative to the traditional adversarial process
Collaborative Law is an innovative approach for divorcing couples who wish to:
- Avoid the courtroom
- Preserve financial resources
- Put the needs of their children first
- Reduce conflict
- Maintain control of the decision-making process
- Make a long-lasting settlement that meets the needs and concerns of both spouses and their children
Why Collaborative Law?
Problems with the Legal System
While practicing divorce law for more than a quarter century, Arnold Cribari found himself more and more dismayed with the inappropriateness of the court system for dissolving marriages.
Lawyers are trained in the adversarial system of jurisprudence, which is a win-lose, zero sum game. Even the out-of-court negotiations in our legal system are based on the power, pressure and threats as an incentive to come to an agreement.
The adversarial approach can escalate the conflict between the divorcing spouses and often exacerbates their anger and distrust. A protracted, hostile process can be emotionally damaging to the spouses and their children, and generate monumental legal fees that may greatly deplete financial resources.
If the negotiations in the adversarial system break down, power and decision-making is transferred from the divorcing spouses to a judge. Most judges in divorce court hate being there and are overburdened with too many cases.
Why not mediation?
Mediation is a settlement process that works when all of the following circumstances exist:
- there is a relatively equal balance of power between the spouses
- they share some important common values, and
- they are both capable of advocating for themselves
In mediation, the two parties go to a neutral mediator who helps them settle their disputes. If and when a settlement is reached, the mediator advises each spouse to have the settlement reviewed by their own separate attorney before any formal agreement is executed.
Collaborative Law: The Third Way
In 1990, a Minneapolis divorce attorney, Stu Webb, developed Collaborative Law as a third alternative for divorcing couples. The collaborative movement is now rapidly growing in Westchester County and throughout the New York City metropolitan area.
Collaborative Law is a healthy and respectful alternative for resolving divorces. A collaborative divorce restructures the family; addresses emotional, financial, legal and parenting issues for the present time and the long term; and optimizes a divorcing couple’s chances to make a divorce settlement tailored to their needs and interests for now and for years to come.
Collaborative Law, like mediation, is also a settlement process. In contrast, however, when collaboration begins, both spouses retain their own attorneys who have special training in the collaborative process. This way, each party immediately obtains the support and advice of his/her own lawyer, but the negotiations are based on a cooperative model rather than an adversarial one.
Instead of conducting adversarial negotiations based on power, threats, and blind adherence to the law, collaborative lawyers focus on the needs and interests of both parties and their children. They utilize active listening and other mediation and peace-making techniques to resolve disputes. This represents a sea change in the kinds of skills that attorneys bring to the negotiating table. Collaborative attorneys are conflict resolution professionals; traditional divorce attorneys are adversarial professionals. Therefore, in order to optimize the likelihood of a collaborative settlement, both attorneys should have extensive and ongoing training in Collaborative Law and Mediation.
At the outset of the collaborative process, the parties and their collaborative counsel enter into a participation agreement whereby they commit to working out an out-of-court divorce settlement that is fair to both parties. This preserves the divorcing couple’s power and privacy, keeping the information and decisions in their hands instead of having a stranger in a black robe determine their fate.
The participation agreement also requires – in the unlikely event that negotiations break down – that the collaborative lawyers withdraw and the parties obtain new lawyers to serve as trial counsel. This agreement to withdraw is very beneficial to the divorcing couple because it ensures that the collaborative lawyers cannot financially benefit from any litigation and trial; their sole motivation is to help the couple reach an out-of-court settlement.
The parties agree to follow Ground Rules. The first Ground Rule is “to attack the problems and concerns at hand, not each other.” As suggested by the first ground rule, negotiations are respectful, although not necessarily friendly, given the high level of conflict and/or distrust that may exist between the couple. This is one of the key advantages of collaborative divorce – any conflict or anger is handled openly and constructively by conflict resolution experts, rather than being exacerbated by adversarial experts.
Mental health professionals (divorce “coaches” and a child specialist) are recommended to help the couple cope with intense emotions, improve their communication and focus on what is most important to them and their children. A financial specialist is recommended to help the couple better understand tax consequences, their finances, and how best to divide their assets and income. The expertise of these professionals can greatly increase the likelihood of a good settlement, and the process remains economical because the hourly rates for their fees are usually substantially less than those of the attorneys.
The settlement conferences known as “four-way” meetings take place at the law offices of the collaborative attorneys, who usually take turns hosting these meetings. The lawyers typically serve coffee, tea and other refreshments to help keep the meetings cordial and respectful.
The initial four-ways are devoted to gathering necessary financial information and documentation such as tax returns, bank and investment account statements, retirement account statements and the preparation of budgets and statements of net worth. If necessary, the lawyers recommend one neutral expert, such as a real estate appraiser or forensic accountant, to determine the value of a marital asset. The lawyers also obtain information from the couple regarding their children, and begin to discuss a parenting plan with the couple.
At subsequent four-ways, the lawyers help the parties identify their important needs and interests, and those of their children (if there are children involved). Once these needs and concerns are fully understood and the applicable law is explained, then settlement options are proposed and considered. The goal is to make a settlement tailored to these needs and interests.
Once a meeting of the minds for settlement is reached, the lawyers draft the settlement agreement and uncontested divorce papers. Then, these documents are signed under the lawyers’ supervision and submitted to the court. No court appearance is necessary in the divorce court in Westchester County and most other counties in New York State.
Having helped a number of clients complete their divorces with “win-win” results through the collaborative model, Arnold is convinced that – in the not too distant future – the majority of divorces will be handled collaboratively. Even spouses with a great deal of anger and mistrust have been able to reach mutually beneficial settlements thanks to the skill and creative problem solving of the collaborative attorneys.