You may have heard the buzz about Collaborative Law, know something of its use in family law and other disputes, and wondered why the fuss. Could you or a dear one benefit from giving a little of your attention to this increasingly used approach to resolving disputes?
Well, if you’re involved in an unavoidable dispute that’s not good, but the answer to the Collaborative way’s benefit is a definite ‘Yes”, if you qualify. As in the case of many better ways there is an entry price and one measure of affording that entry price is determining whether at least one of the disputing parties has the will not to engage in the acrimony that is virtually inherent in our dominant dispute resolution system, the adversarial approach.
The rationale for the adversarial approach to justice is that the truth will out, emerge from the vigorous contest, and it sometimes does. However, the process associated with legal confrontation has itself become so oppositional, formal, game-like, rigid and stressful for the participants that it’s remarkable there is not more demand for change. Of course, good results do happen and we have many dedicated counselors, advocates, marital masters and judges who daily do their best to make the system work.
What are their obstacles? Failed relationships may involve violence, serious psychological instability, alcohol or drug abuse, children with special emotional and other needs, difficulty in sorting out what needs to be known to make good decisions, and a shortage of court time and resources to permit any reasonable expectation of more than generally okay, by the rules, cookie cutter results.
Judges and Masters, no matter their attention and skill, have to rely on the evidence and their life experience in determining who is telling the truth. Yet, the rules, while fair, don’t guarantee that each side’s case will be well presented on the appointed date, nor that each side will have the same emotional and financial resources necessary for making its case. The format is a contest, and that usually means someone wins and someone loses, though the wins and losses may be divided.
Is this any way to resolve a dispute that can and typically does affect family members for years to come? How each member will do emotionally and financially? The fair sharing of the privilege and responsibility to care for, support and educate children?
Many say “No”, there is a way that respectfully provides for a full airing of everyone’s concerns and interests, in a non-adversarial contest-free environment, with each side having access to personal legal counsel, and such emotional or psychological counseling and financial advice as may be appropriate, all delivered with conscious awareness and respect for the interests of all the family members and what holistically is fair. Of course, this is arguably the aim of the statutes and court process too but that path hazardous and uncertain.
The Collaborative entry price is that at least one party to the dispute must want something better than what the court system can usually produce and the other party or parties must be open to learning about the better approach and, ultimately, commit to making Collaboration work because it’s in everyone’s best interest. Without the commitment, which is to be written up in a formal contract, there can be no collaborative law solution.
In the formal collaborative law model, each party has his/her own legal advisor who provides client specific and confidential advice but in a setting that is collegial, recognizes and respects the interests of all the parties. Depending on circumstance, a group coach, drawn from either professional mediators, therapists or similar helping professions may be retained to offer coaching, as a neutral, to the parties, or they may have their personal coach. In either case, the coach’s mission is to promote the common goal of serving the interests of everyone in a fair way; there may also be a child care expert, as appropriate, and a financial planner who presents best outcomes for the family or the parties.
The Collaborative approach cannot cost-compete with a no frills or even low budget divorce where one side hires an attorney to do the paperwork and the other signs off without much ado. Realistically it’s only an option for people with modest middle class incomes, assets or family or friends who will help. The same professional support staff applies to the adversarial process, with comparable issues at stake. In adversity as well, the availability of support depends on financial means
However, in the adversarial approach experts represent only one side, though child counselors and guardians or other experts may be appointed by the court and so be neutral rather than committed to one side. And so the collateral services used collaboratively may reasonably be expected to cost the family less than the cost of rival experts hired in the adversarial approach to the same issues.
The cost of the adversarial approach to compulsory sharing pretrial discovery, via interrogatories, motions, depositions and so on, may greatly exceed the cost of simply transparently exchanging the same information that is necessary to a fair settlement Whenever there is secondary dispute over discovery issues, think extra legal fees, motions, court sessions and so on.
After full preparation and conclusion that no acceptable settlement can be reached, adversaries appear in court before a Master or Judge and hope their case will better impress the Court and result in victory. Guarantees are illusory, the outcome is at best the subject of educated speculation and instead of victory, there may be only partial victory or defeat. The remedy then is a request for reconsideration or appeal, at considerable additional cost, to the New Hampshire Supreme Court. It’s rare but it happens that more than one appeal is taken in a case.
Even when the Court’s decision is accepted without appeal, predictable problems that commonly arise tend to lead the parties back to Court, occasionally many times and sometimes over many years. The emotional and financial cost can be terrible.
Participants claim that the Collateral path, formally taken, seldom fails. If it does fail, the parties are free to start over, whether in court or not. The cost of a failed collaboration may be comparable to the cost of a full mediation effort or initial court trial, depending on circumstances. However, legal options are not constrained by Collaborative way except, a la Las Vegas, what happens in Collaboration, where the spirit is open and transparent, cannot be used in Court against any party.
Collaborative solution agreements, by their nature are not surprises, are not decided by one Master or Judge with time and other constraints on what s/he learns about us, but are contracts arrived by a team of people, including the parties, with a common goal of fairness, determining everyone’s interest and needs and adopting a plan that is best for the family as a whole and respectful of the parties individual interests. The cost of court personnel rendering the same service would outrage, if not break, the taxpayers. There is no ultimate competition between Collaboration and Adversity, if fairness is the goal.
Collaborative divorce contracts/agreements are submitted to the Court for approval, and written to be routinely granted. If there’s need for later adjustment, the solution is not rival motions and trips to court, but, the parties willing, the team can be reconvened for its advice and counsel.
Is this Collaborative Solution approach not a more humanistic, altruistic way that informed and qualified people will regularly choose for divorce or other family or business dispute resolution? The most likely answer is that time will tell. We know the number of professionals who weary of the adversity way is increasing. Word of mouth from those who have used the service will be the deciding factor.
George A. Collins
Goffstown NH
attorneygeorgecollins.com