Saturday, October 1, 2016

Why Should You Try Collaborative Law?

If you are facing a divorce and you are trying to decide how to proceed, you might be interested to know some of the advantages of Collaborative Law.  See if any of these appeal to you.  If so, you should consult with an experienced Collaborative lawyer and discuss whether the process could work to your benefit.  Here are some topics to discuss with an attorney.

  • Privacy.  In litigation, you have a lot of pleadings filed that are public records and hearings held in open courts.  In Collaborative Law, the process is handled by having a series of short, private meetings (not at the Courthouse).  The work is conducted quietly and privately.  When the agreement is finalized, there is a prove-up at the Courthouse, but it is a minimal, routine appearance. Discussions are held in private and documents are kept private.
  • Control over the outcome.  Instead of having a Judge make interim and final decisions, the parties make their own decisions all along.
  • Professional assistance.  Each party has their own attorney and there are a neutral financial advisor and a neutral therapist to help the parties with financial issues and communication and children's issues.
  • Focus on important issues.  At the outset, the parties express their personal goals, needs and interests and then the process focuses on achieving  what each party wants.  Both parties can get their needs met most of the time. 
  • Both parties are benefited.  By focusing on what's important for both parties, both become satisfied.
  • Civilized approach.  Collaborative trades in the experiences of trials, testimony, depositions and formal discovery for short meetings that follow an agenda and focus on the important issues that benefit both parties.  We do not participation in the typical "beat down" of many litigated cases. The parties are on their best behavior and the neutral therapist ensures that they behave and function well in the process. It is a much less stressful process.
  • Improve communications.  One of the side benefits of the process is that the parties usually learn better listening and communication skills with the help of the therapist and we don't just divide everything in two.
  • Creative solutions.  In Collaborative cases, we are open to any proposals. We do not automatically default to the guidelines for child support or possession schedules, for example.  We are free to invent new approaches as long as they help the parties meet their needs.
  • Can protect assets.  We have great flexibility to deal with assets and take actions to help the parties meet their needs.  Our negotiations are interest-based, rather than positional.  That means that we always focus on the underlying interests or needs of each party instead of starting with arbitrary positions so we can end up with an arbitrary result in the middle.  The middle may not be a good solution.
  • It can move as quickly or slowly as the parties want.  Actually, we move a quickly as the slower party wants to go, but the difference is that we are not bound by an arbitrary court schedule imposed by the Judge who rarely considered the circumstances of the parties. 
 If you think any of these advantages of Collaborative Law appeal to you, meet with a trained Collaborative lawyer who can help you decide if your case would be appropriate.

Thursday, September 15, 2016

Will it Work?

When you hear about some new idea that someone urges you to try out, one of your first questions may be, "Will it Work?". We don't want to waste time and money on something that doesn't stand a chance of working.

It may not work.
Anyone telling you about Collaborative Law will have to admit that there is a chance that the process won't work in some cases.  Sometimes it's because of the parties involved, other times it's the whole context of how the matter is happening.  Many times it can be because of outside forces, such as pressure from family members, time constraints or work issues. It can also make a difference it you choose to work with experienced versus inexperienced professionals.

Failure is rare.
The down side is that if the process is unsuccessful, the professionals have to withdraw and the there's added costs for the parties in getting new attorneys.  The good news is that failure is rare. 

Here are some common circumstances which sometimes unnecessarily scare people away from using Collaborative Law.

1.  One or both parties are mad. Actually, that's not unusual.  These are divorces after all. When we work with a full team, including the neutral mental health professional, communication improves greatly. People end up working together much better because they are surrounded by trained professionals who help them learn better communication skills.  That's an extra benefit of using the Collaborative process.

2. One doesn't trust the other party.  Again, that's common when people get divorced.  Again, trust is managed and greatly improved with the involvement of the neutral mental health professional, the neutral financial professional and two lawyers, all watching over everything. Part of the Participation Agreement everyone signs at the outset is an agreement to be open and honest.  We all also agree to correct any mistakes anyone finds.  This is about the most protected people can be in a negotiating process.

3. Someone believes the other party can "out-negotiate" them.  That's not even an issue because of having the team working together. Plus, we negotiate differently.  We don't use car-buying tactics.  We approach it differently by getting both parties to tell us their real goals, interests and needs. The negotiations focus on meeting the goals for both parties, rather than creating a "win-lose" scenario in which only one party is satisfied.

If you have any of these concerns, please talk with your attorney.  If you are meeting with a trained, experienced Collaborative attorney, your questions will be answered and your concerns laid to rest. While these are common issues, you really should have no problem entering into the process under these circumstances.

Thursday, September 1, 2016

Why Do We All Meet in the Same Room? Part 2 -- Benefits

We recently discussed why having Collaborative meetings works when all the parties are in the room sitting around a common table.  It's a safe, effective and well-managed process.

This is in contrast to the typical litigation scenario where the attorneys speak for the clients or ask questions in court and the Judge makes rulings which may or may not actually help the parties work through this difficult process.

If you choose Collaborative Law, you will have the meetings in the same room, but there are a number of benefits from meeting directly together. Here are some to consider.

1.  The direct contact improves communication.  It's not filtered or interpreted by having the attorneys speak for you or against you.  You can speak for yourself, with support from your attorney and the other professionals.

2.  Everyone feels safe.  We don't wander off topic or allow ambushes.  We plan an agenda and stay with it.  If someone starts feeling anxious or upset, the Mental Health Professional (MHP) can step in and restore order.

3.  Both parties get heard.  A frequent complaint about Court is that one or both parties don't really get to say what they want to say in Court.  In Collaborative, the parties are encouraged to speak up.

4.  Collaborative is an efficient process.  You can get immediate answers and you can continue a discussion as long as is needed and then move on. You can directly address issues and get resolution.

5.  The process becomes real for everyone.  Direct participation, discussion and the ability to make decisions and agreements is in sharp contrast to litigation. There, technical legal issues sometime take over and dominate discussions, instead of having humans thinking and acting cooperatively to find their own solutions. In Collaborative cases, the parties are in control of their own outcomes.

If you are facing a divorce and are deciding how to proceed, please talk with a trained Collaborative lawyer who is experienced with Collaborative cases.  You can find out if Collaborative would be right for your case.

Monday, August 15, 2016

Why Do We All Meet in the Same Room?

One of the key elements of Collaborative Law is that we have meetings with both parties in the same room with both attorneys, plus the Mental Health Professional (MHP) and the Financial Professional (FP).  We encourage direct, respectful communication between the parties and the professionals.

Occasionally, some people are a little hesitant to commit to sitting next to, or even across the table from, the spouse they are splitting with.

This is another aspect of Collaborative Law that sounds difficult, but which normally works well and usually helps some wounds heal.

Why does it work?

1.  MHP: A big part of the MHP's role is to manage the discussions and help the two parties improve their communication skills so they can effectively participate in the process.  The MHP will redirect one or both parties, as needed, and can call a timeout if someone appears uncomfortable or some other problem shows up. Plus, the MHP discusses rules of conduct with the two parties to reinforce the expectations of their conduct.

2.  Attorneys:  In addition to the MHP, there are two specially-trained attorneys cooperating, helping lead the process and acting as role models for the parties.  The attorneys act very differently than they would in a litigated divorce.

3.  FP:  Having the neutral FP also adds to the security and integrity of the process.  Perceptions of a power imbalance between the parties can change because the FP can control the gathering and review of financial records, making sure that everything is produced and accurate.  The FP also takes a lot of the emotion out of the financial discussions.

4.  Planning:  With the Collaborative process, we initially determine the goals and needs for each party, then have meetings that are planned out and which follow set agendas.  Minutes are kept and there are discussions before and after the joint meetings, so the professionals keep on top of any issues and make sure that we all stay on track and don't wander off to upsetting unscheduled topics.

If you are considering using Collaborative Law to work out a divorce, don't worry about being in the same room with your spouse, even if one or both of you are upset.  The process is set up with many safeguards to make sure everyone is comfortable and safe  working together. Please talk with your attorney about any concerns you may have.

Monday, August 1, 2016

Who Should Make Life's Major Decisions?

In an ideal world, two spouses love each other, communicate well and can make decisions together.  In reality, that's not often the case.  Love fades, anger comes in and the parties no longer get along very well.  Communication suffers and whether it's the cause or the effect of the break-up of the marriage, making decisions together becomes very difficult.

Still, there are important life decisions that must be made and the parties need to be able to respond to various issues that are family-related.

Issues like:
  • Raising kids:  how to share time and responsibilities for the kids.  Who makes decisions?  How much consultation goes on?  What if the parents disagree on something?
  • Financial support:  one spouse often makes substantially more than the other spouse.  Sometimes a former spouse needs help resuming an old career or starting a new one.  There can be health issues.  The children may have special needs.
  • Paying bills and taxes:  who has responsibility?  How is it figured into the overall settlement?  What if one spouse can't afford to do much? 
  • Retirement planning: how to divide up existing retirement assets.  Is there a greater need for cash now or at retirement?  Is there a way in increase future contributions?
  • Home ownership:  do you keep or sell the house?  Who gets the house or the sale proceeds?  Do you use the proceeds to pay off all the bills? Do you try to refinance the house?
There are different ways of ending a marriage.  Litigation is the traditional approach and it usually includes going to mediation near the end of the process.  If you go to trial, the Judge will answer all the questions.  If you use mediation, the parties will try to settle the case with the help of a neutral mediator, with the possibility of going to trial if mediation fails.  

Collaborative Law is the  "new kid on the block".  This process allows the parties to work out their own terms by having a series of meetings that begin right away.  They usually work with a neutral therapist and neutral financial advisor.

So the question is:  do you want to be in control of your own destiny or do you want a Judge to decide how you raise your kids and how your finances are going to be managed?  It's up to you.

Friday, July 15, 2016

Is Collaborative Law Appropriate for Our Divorce?

In my view, no case is too complicated for Collaborative Law.  In fact, the more complicated a case is, the better it is to use the Collaborative process instead of fighting and using a standardized approach in litigation.

The question of whether to try Collaborative usually comes up more in the context of some cases that don't have a lot of moving parts.  Simple cases, with limited issues, may not need the Collaborative process.

It can be  a real judgment call to decide whether to use Collaborative or just try to quickly finish an agreement on limited issues.

So, how do you know if your divorce is appropriate for Collaborative Law?

If there are no kids and very little property, an informal approach would probably work, as long as there are no major fights.

But, here are some issues that call for the Collaborative Law approach:

1.  You have a custody conflict.  If both parents start out saying they want primary custody, Collaborative would be very helpful.  There are many options available and Collaborative is certainly a better option than going through a court custody battle.

2. You need a special parenting plan for the kids.  This might be a unique visitation schedule or special time-sharing arrangements. This often comes up when one or both parents have weird or changing work schedules.

3. There are conflicts over expenses, activities or educational needs for the children.  Collaborative Law provides a flexible and creative way to work out agreements that benefit kids while being manageable for the parents.

4.  Post-divorce financial help is needed.  There may be a great disparity in income, education or health between the parties.  Alimony may be needed and help with education expenses for a spouse may also be needed. Working in Collaborative, the parties can find ways to provide needed support post-divorce in affordable, but beneficial ways for both parties.

5. There are special financial needs.  There may be bills to pay off, a house to be sold, a new house to be purchased right away or assets that are hard to divide.  Collaborative Law gives you the time and flexibility to come up with appropriate, customized solutions.

Collaborative Law is not for just the easy cases or ones with very few issues.  It works well for custody issues and complex property issues.  If you are facing a divorce, it is in your best interest to contact a trained Collaborative Law attorney for a consultation so you can decide if the process would work for you.

Friday, July 1, 2016

Do You Want Attention to Details in a Divorce?

Collaborative Law is promoted as being a different process from Litigation for many different reasons.  There are some differences that aren't often emphasized that can be very important to many people.

Usually, attorneys talk about having a series of short, private meetings.  They talk about the agreement to not go to Court, but instead to work directly in the meetings.  They talk about the requirement for the attorney to withdraw in the event the process breaks down, and how that is the great incentive to keep negotiating by trying new approaches.  Those are all significant differences from Litigation.

But, there are some other differences that have a cumulative major positive effect on the outcome of a case. They may sound minor, but they all add value to a problem-solving orientation.
  • There's an agenda for each meeting and we stick to it.  That reduces surprises, limits the topics under discussion and makes it easier to prepare for a meeting.
  • Minutes are taken.  We have a record after each meeting of what was discussed and what agreements were made, as well as what the plans are for future meetings.
  • After each meeting, we have de-briefings.  The attorneys meet briefly with their clients to find out if there are any questions or concerns and to see how the client is feeling.  After that meeting, the attorneys and other professionals meet to review the meeting, plan for the future and consider how to deal with any problems that may have come up.
  •  We use experts well.  We usually have a neutral therapist and a neutral financial advisor.  We can hire joint experts for tax issues, appraisals, psychological evaluations or other needs. There is a lot of freedom to bring in a variety of people, if we can benefit from them.
  • It's a very private process.  Staying away from hearings, Discovery and other distractions, we can quietly work on the important issues.  We can help professionals, wealthy people and celebrities, among others, who don't want their private lives shared with the world. 
If you're facing a divorce or have some other Family Law issues, talk to a trained, experienced Collaborative Lawyer about whether the Collaborative process would benefit you.