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July 2018

Judges love collaborative law—here’s why

“Collaborative law is a bottom-up movement spurred by lawyers” looking to protect families from adversarial divorce proceedings, says Pauline H. Tesler, a certified family law specialist from the State Bar of California Board of Legal Specialization. She hosted the ABA-sponsored webinar, “What Every Lawyer Needs to Know About Collaborative Law and Interdisciplinary Team Collaborative Practice.”

Collaborative law was spearheaded by Stu Webb, a Minneapolis family lawyer who refused to remain as counsel if the opposing party in a divorce case resorted to taking the dispute to court. This idea of a limited-purpose retention in which the lawyers are retained to assist clients in resolving, by agreement, all issues related to the matter in dispute – usually but not always divorce – began in 1990.

Collaborative law is entirely outside the court system, except for agreed-upon mandatory filings needed to secure judgment on all issues. The basic elements of this practice of law are:

  • A written agreement is signed by lawyers and clients provided that no one makes use of or threatens to make use of the court process during collaboration.

  • Good faith negotiations and problem-solving skills are utilized.

  • Neither lawyer can participate in any litigation against the other party after signing on as the collaborative lawyer.

  • Lawyers are “fired” if the parties decide to choose litigation instead of collaboration.

  • Each party has a lawyer by his/her side and participates actively in all negotiations.

  • Experts are retained jointly as neutrals and are also barred from ever participating in litigation.

Today, every U.S. state and Canadian province acknowledges this practice of law. There are an estimated 20,000 trained collaborative lawyers and an estimated 50,000 or more completed cases.

“There have not been any reported malpractice decisions related to collaborative law in any North American jurisdiction in 26 years,” Tesler says.

She explains that while collaborative law appears similar to mediation and conventional friendly negotiations, it is not the same thing.

Collaborative lawyers are different from mediation lawyers in that they are advocates, not neutrals. Lawyers learn constructive, family-friendly methods of helping clients advocate and prioritize their needs in a respectful manner.

Collaborative law is also different from conventional friendly negotiations since the risk of failure is distributed to lawyers as well as clients. If the client chooses to litigate, the collaborative lawyer is no longer needed and therefore fired. This incentivizes the collaborative lawyers to become effective problem-solvers.

Tesler describes the interdisciplinary team collaborative practice as “coaching for adults.” The lawyers combine their efforts with trained and licensed mental health professionals, neutral financial consultants and, if needed, child specialists. Each client receives coaches specific to their needs or issues during the collaborative process, retained and paid separately by the clients.

These mental health professionals are trained to deal with stress management and have very effective communication skills. The neutral financial consultants gather and review financial data and the information becomes a shared source between all parties. The neutral financial consultant’s job is to project the long-term result of the different settlement options.

If child specialists are involved, they provide a voice of and to the children. In custody or parental disputes, the child’s voice is present, but insulated from the negotiation. These specialists provide an accurate understanding of a child’s-eye view of divorce and make sure that the child’s needs are prioritized.

Tesler cites many benefits to the collaborative law process:

  • High level of privacy and confidentiality

  • High level of control over the process by clients

  • Creative and unrestrictive ideas for settlement

  • Focus on children and post-divorce relationships

  • Richer mix of professional input and guidance

“There are many key benefits, and one important one is that judges tend to really like collaborative law,” she says. Collaborative law keeps these cases out of the courtroom and prevents the courts from being cluttered with litigation cases. This alone can keep a judge happy and his or her caseload under control.

"What Every Lawyer Needs to Know About Collaborative Law and Interdisciplinary Team Collaborative Practice" is sponsored by the ABA Center for Professional Development, Center For Professional Responsibility, Standing Committee on the Delivery of Legal Services, Division for Public Services, Section of Dispute Resolution and Section of Family Law.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.
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