Tuesday, June 2, 2009

Preconditions to Using Collaborative Law

Let me be clear that I have a bias favoring the use of Collaborative Law in settling family law disputes. When there is a hesitation by the other side in a case, I get concerned.

On occasion, as I have talked with Collaborative lawyers about starting a new case as a Collaborative divorce, the other attorney has suggested that s/he wasn't sure the case would be a good one for Collaborative Law, but we could try it if my client would first: give up custody of the kids, move out of the house or give the spouse a sum of money. Since each of those was the biggest issue in each respective case, my clients didn't see the value in conceding that issue and then using Collaborative for whatever was left. In those cases, I couldn't talk the other attorney into dropping the precondition and the other attorney didn't seem to see anything wrong with that approach.

Custody, use of the house and getting access to money are common issues that are dealt with over and over in Collaborative Law. They can be tough issues in any kind of approach. Judges and juries often have trouble making decisions on those topics and they can be tough issues even in the Collaborative Law approach. Nevertheless, I wouldn't hesitate to use Collaborative to work out agreements on those issues. For all the reasons why we are committed to Collaborative, it is usually a superior way to resolve these legal issues.

From my perspective, the real reason why some attorneys insist on preconditions to using Collaborative Law is that they just aren't fully comfortable with the process and aren't convinced it can work with difficult issues. In other words, it's a lack of commitment to the process. Sometimes, attorneys are so integrated into positional bargaining that they can't let go of the security of grabbing a position and holding on. When we are "brought up" doing positional negotiating, interest-based negotiations may seem a little scary. Attorneys may feel out of control when they don't have clear cut positions they can claim and hold in negotiations.

So, what's a person to do?

If you go to see a Collaborative lawyer and that lawyer starts telling you that the case really isn't appropriate for Collaborative Law, I suggest that you challenge the attorney to explain why. And I suggest that you get another opinion from another Collaborative lawyer.

Unfortunately, some attorneys claim to be a trained Collaborative lawyer when they really aren't or when they don't really practice Collaborative Law, and those attorneys use the ads or web site sections to bring in potential clients whom they then tell that Collaborative Law is not appropriate for their case. Any time you are told that Collaborative Law won't work in your case, you should get a second opinion from another Collaborative lawyer.

Sometimes, after discussing the proposal to use Collaborative Law with the attorney, it's the client who wants to impose a precondition before agreeing to use Collaborative Law. In that instance, it's clear that the attorney just hasn't explained the process very well or the client perceives that the attorney isn't real comfortable with the process. If the attorney isn't sold on Collaborative Law, the client probably won't be either. Again, a second opinion would be advisable.

The bottom line is that agreeing to use Collaborative Law only if a precondition is met is unacceptable. If you want to use the process, keep searching until you find a truly committed and experienced Collaborative lawyer who will help you.

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