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What Should We Do?... The Choices for Divorcing Families

Paula H. Noe, Esquire

Published in the Divorce Center Journal - 2006

How about giving divorcing families (in crisis, as, of course, most of them are) some choices, some ways to reach settlement with dignity and respect? We can, you know…..and we, as professionals, should. 

Life is full of choices, and an important and even vital one is the avenue by which the family reaches the Separation Agreement, the contract that ends the marriage. In my family law practice, I consider myself morally and ethically and legally obligated to the divorcing person(s) in front of me to let him or her or them (I am merely dispensing information, not legal advice, at this point and am not representing either party and am painfully clear about this if the couple wants to come together to see me and get educated; this practice has, indeed, been blessed by the Massachusetts Board of Bar Overseers) learn about their options at this critical moment in their lives. This is, after all, their lifetime (and not mine) ahead of them, and they should each know what lies ahead (as best we can predict anything) so that he or she makes a decision after, and only after, full disclosure and with informed consent. Indeed, the ethical opinions regarding Collaborative Law emphasize the importance of informed consent, especially in the context of the limited representation world of Collaborative Law – we promise to represent the client without court intervention, so our representation is limited and this fact must be crystal-clear to all clients and potential clients.

Thus, I make it a regular practice to meet with each potential client for at least an hour before we make a joint decision to work together (or not – I am also aware that my practice doesn’t always fit with some potential clients). I make sure the person in crisis understands the choices:

1.The litigation model in which the attorney and the party work together to request that the court make the vital decisions (usually because the parties just can’t do it together, for one or many reasons). This time-tested model is completely appropriate for some parties and for some attorneys. No one model fits all, after all.

2.The mediation model in which the neutral mediator guides the parties toward settlement, usually with the attorneys for the parties on the fringe of the process (often called ‘consulting attorneys’). We are so fortunate to have so many skilled mediators in our geographical area who can ably and successfully facilitate an Agreement between the parties, with the individual attorneys guiding their clients on an ‘as needed’ basis. I refer clients to the Massachusetts Council on Family Mediation for more information (www.mcfm.org), and sincerely believe that educating the client regarding mediation is one of my primary obligations.

3.The Collaborative Law (also known as Collaborative Practice) model whereby each client hires a collaboratively-trained attorney (go to www.massclc.org or www.collaborativepractice.com for more info). Then, in a series of 4 (or more) way meetings structured around an agenda and fair dealings and transparent negotiations, the parties and their attorneys articulate the goals of the divorcing parties and strive to reach the goals in order to create a Separation Agreement. There are several keys, in my view, to a successful Collaborative Law situation; together all of these requirements comprise the total ‘Collaborative Commitment’ –

a.The most vital ingredient is for the process to be guided by two collaboratively-trained attorneys. Although many experienced divorce (and business, too – this works in the civil arena also) attorneys can articulate, “I have been negotiating collaboratively forever and already know how to do it.”, my experience is that without the training and belief in the necessary ‘paradigm shift’ taught only at a Collaborative Practice training (offered in MA by the Massachusetts Collaborative Law Council – www.massclc.org), the real collaborative process just doesn’t happen, and the clients do not receive the benefits that are possible.

b.At the very first 4 way meeting, the parties and their attorneys voluntarily review and then sign a Collaborative Process Agreement whereby everyone agrees that if either party involves the court in the process (in other than the final divorce hearing or some other agreed-to situation), then both attorneys will withdraw from the process. Thus, the parties would have to hire new attorneys in order to proceed with litigation. This ‘collaborative commitment’, this binding agreement to negotiate a resolution with these 4 parties without court intervention, is the cornerstone of the collaborative process and the brilliant idea of Stu Webb, the Minnesota attorney and architect of the collaborative model. The pragmatic ‘collaborative commitment’, while still offering the parties another choice, further requires their individual and collective ‘informed consent’ to the process, and serves as a deterrent to one or the other of the parties bolting from the process when the going gets tough, as it can do. 

c.The parties and attorneys also use an established protocol which does include, among other things, 1. Regularly scheduled collaborative meetings, 2. An agenda in advance of every meeting, 3. Minutes of the meetings which are circulated to all the participants, 4. Debriefing with the individual client(s) and with the other attorney and/or team members, 5. Communications between meetings between the lawyers and their individual clients and between the lawyers and between all team members.

d.I have come to understand and believe in the value of involving at least one Collaborative Coach, a collaboratively trained mental health professional who works for the process and can guide us all through the meetings in the most productive way. I have discovered that, quite frankly, my clients who have used such a Collaborative Coach do reach Agreement in a healthier and more productive way than the clients who refuse to do so. In addition, if the collaborative attorneys tell their individual clients, from the very beginning of the process, that having a Collaborative Coach is ‘the way we do it’, then the clients accept this protocol willingly.

We also utilize other professionals on an as-needed basis during the process. I find it is highly valuable to have a Financial Expert involved in order to give the clients their options by way of the projections that the Financial Expert provides. Since this Financial Expert also works for the ‘process’ and not one client or another, he or she can provide neutral information that everyone can accept and understand

In addition, we may involve another mental health professional in order to help with the issues regarding the children during or after the divorce. Again, because Child Specialist is neutral, his or her opinion is accepted readily by the clients, and his or her suggestions are considered on their merit more easily than they might be if the Child Specialist was working at the directive of only one of the clients.

All of these non-attorney professionals are hired jointly and by agreement by the clients, in the same manner that we would hire a business or real estate appraiser; thus their neutrality is understood and valued.

My personal experience with the collaborative model is very good; I have had some incredibly rewarding and challenging cases whereby the other attorney and I were required to communicate openly and often, to talk to each other and to our clients constantly, to draft agendas, to model good behavior for our clients in the midst of tough negotiations, to keep the goals and interests of the clients in the center, where they belong. Since a Collaborative negotiation is, by definition, interest-based (as opposed to position-based) negotiation, setting the goals and interests at the first meeting is an interesting and, I believe, necessary exercise., I find it very helpful to work with my client before the 1st four way meeting so we can develop, at least partly, the beginnings of the list of goals; every client has them, but some have to be coaxed to share them – one of the most often shared is something like, ‘to reach a fair and equitable resolution in a cost-effective and dignified and respectful manner’. Needless to say, I haven’t yet found anyone who disagrees with that one! And I find that when the negotiations get really tough (and, believe me, they certainly do! We are, after all, still dealing with divorcing families in crisis!) my ‘collaborative colleague’ (the other collaborative attorney) and I can often invoke one or another of the previously- set goals in order to (try to) move the discussion along in an appropriate manner.

More possibilities abound in the collaborative protocol. Although each case is individual in its needs and expectations and resources and personalities and such, the collaborative model can be molded to fit. Each client needs a team during the divorce, I have found, and some people use their family and accountant and brother-in-law’s cousin and distant friends who have miserable divorce stories to get their information and advice; needless to say, this approach doesn’t often advance the best interest of the client. So, by providing access to a team of collaborative professionals during the collaborative divorce, the divorce attorney can guide the client to educate him or herself about the reality and the possibilities.

All in all, I opt for choices. Collaborative law is my favorite one, and I let my potential clients know that. In addition, I encourage each of you readers (if you go this far in the article, you must be interested…..) to participate in the collaborative movement – educate yourself, your clients, your world. Join us in expanding our options. The possibilities abound…….

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