Tuesday, February 27, 2021

Collaborative Family Law Center Announced by Chief Judge in New York City

excerpted from The New York Times, February 27, 2007:

ALBANY, Feb. 26 — Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements.

New York, which does not have no-fault divorce, is notorious for judicial delays that turn even the least fraught divorces into expensive, acrimonious affairs.

Judge Kaye, who has long championed overhauling state divorce laws, repeated her call for no-fault divorce in her speech on Monday, but that idea has stalled in the Legislature in the past.The planned Collaborative Family Law Center, which will serve all five boroughs, does not require legislative approval, and it will serve as a pilot project on alternative approaches to divorce when it opens in Manhattan this year. “Too much money, too much delay, too much agony,” Judge Kaye said in her speech, describing the state’s divorce laws. “We anticipate that spouses who choose this approach will find that the financial and emotional cost of divorce is reduced for everyone involved — surely a step in the right direction,” she added.

The new family law center would put the state’s imprimatur on an alternative approach to divorce proceedings that started in Minnesota more than a decade ago and has migrated around the country since then but that experts say is only sporadically used in New York. “It’s much less contentious,” said Henry S. Berman, who practices collaborative law and is a partner at Berman, Bavero, Frucco & Gouz in White Plains.

“If people come into collaborative law wanting to do the right thing and not wanting the last drop of somebody’s blood, and they’re open about their assets and income, it’s a terrific way to do it,” he said. “The litigators will tell you it doesn’t work when people aren’t honest and open, and that’s true. It takes a certain mindset.”

Under the process, lawyers still represent both sides, but they agree not to continue representing their clients if the negotiations fail and the matter ends up in court. That way, advocates of the process say, the lawyers are deprived of a financial incentive for failing to resolve the matter amicably. The participants also agree not to go to court for a certain period of time while the alternative process is under way. The sides would still have to negotiate grounds for the divorce, unless they used a so-called conversion divorce, which allows couples who stick to a separation agreement to divorce after a year without finding fault.

“The basic premise behind it is that by providing folks with access to lawyers who are knowledgeable in matrimonial law, who are committed to negotiating on behalf of their clients an amicable settlement without being stuck in the adversarial environment, they are able to limit expenses and foster a more collaborative process,” said Daniel Weitz, a state coordinator for the Office of Court Administration. Jacqueline W. Silbermann, deputy chief administrative judge for matrimonial matters, said the state’s embrace of the process would mean “we will have court oversight of the collaborative law center, and very importantly, we will be providing lawyers for people who can’t afford lawyers to represent them.” Some lawyers said the practice had limited appeal because many people in the midst of divorce want to maintain the threat of going to court while negotiating settlements. “I just see that people here are more apt to want to use lawyers to the full extent possible when they hire them, and that means letting them go to court if necessary,” said Alton L. Abramowitz, a Manhattan divorce lawyer who is chairman of the matrimonial committee of the New York City Bar Association. He noted that he was not speaking in his capacity with the bar association.

Though Judge Kaye’s call for no-fault divorce has stalled in the Legislature, Senator John A. DeFrancisco, a Syracuse Republican who is chairman of the Senate Judiciary Committee, said the two chambers were working on reducing the amount of time it takes to get a conversion divorce, from one year to a few months, a step that would move the state closer to something akin to no-fault divorce.

Tuesday, February 20, 2021

The Collaborative Divorce Team

The following is an excerpt from Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, by Pauline H. Tesler and Peggy Thompson, published by HarperCollins in May 2006. The paperback edition will be released in late spring 2007.

THERE are all kinds of houses - big and small, simple and complex - but no matter what kind of house you require, the sequence of steps you'll need to take to get it built are the same, involving many choices at every juncture. Whatever kind of house you build, it starts with a foundation, moves through framing to roofing, and leaves the finish work until last. If you do your research, gather your information, take your time, and make good decisions, relying on a well-chosen team of experienced building professionals, your new house can provide shelter and comfort for a lifetime.

Similarly, when the time comes to choose who will be on your collaborative divorce team, you'll need to consider your own specific situation, as well as how much of a budget you have for your divorce and how much importance you place on the excellence of the design and the lasting strength of the ultimate results. One person alone can't do the job of a team of specialists. But exactly what mix of collaborative professionals is best for you may different from what another couple settles on. You may begin with collaborative lawyers and, with their advice, decide to bring coaches and a child specialist onto the team. Another couple may begin with coaches, who will refer them to collaborative lawyers and a financial consultant. Wherever you begin, the job of your first professional helper will include advising you about the right mix of collaborative professional help for your own specific needs - advice you'll need to choose the best team for your specific situation.

The team members

The following professionals are all specially trained to work skillfully together as a fully staffed team with the two collaborative lawyers selected by the divorcing spouses: two mental health professionals working as coaches, a child specialist, and a neutral collaborative financial consultation (typically, a certified financial planner or certified public accountant with a Certified Divorce Financial Analyst credential or its equivalent).

Let's take a look at what each team member does:

1. Collaborative divorce lawyers

In a collaborative divorce, you and your spouse will each have your own collaborative lawyer. The lawyers' responsibilities include:

  • Advising their own clients about the divorce process, including the law;
  • Helping their own clients clarify and communicate effectively about goals, interests, concerns, priorities, and values;
  • Advocating for and with their own clients in all stages of the collaborative divorce process so that all concerns are addressed appropriately;
  • Working collegially with the other collaborative lawyer as guides and managers of the divorce negotiations;
  • Working collegially with the other team members to manage conflict; gather, understand, and make sure of information; expand options; and design and consider solutions;
  • Modeling and teaching collaborative conflict resolution skills; helping you and your spouse find creative, comprehensive, mutually acceptable solutions to all divorce-related problems; and
  • Doing all tasks needed to complete a comprehensive settlement agreement and a legal divorce.

Together, the lawyers for you and your spouse will help you hear each other's point of view and consider a range of options for resolution. Collaborative lawyers are hired solely to help you and your spouse get to the best possible agreement, entirely outside the court system. While they will handle the necessary court paperwork to convert your divorce agreement into your divorce judgment, collaborative lawyers can never represent either you or your spouse in court against the other. Although your lawyer represents only you, not your spouse, your lawyer never becomes your spouse's adversary.

Though the lawyers work individually with their own clients, the sharing of information and arriving at solutions is done in meetings that both lawyers and both spouses attend. The lawyers never negotiate deals without both of you present at the table and actively participating in the negotiations.

Take the time to find the best collaborative lawyers you can locate, and encourage your spouse to do the same. The best encourage their clients to take the long view and to work toward solutions that will still look wise 15 or 20 years later. In the words of one of our colleagues, "I want to help you end your marriage in such a way that you can dance together at your daughter's wedding."

2. Collaborative divorce coaches

Collaborative divorce coaches provide a broad range of support to help you move constructively through your divorce, bringing perspectives and skills that only a mental health professional can offer. They distinguish themselves from other similarly licensed mental health practitioners in the community with their special additional training and experience in communication skills, family dynamics, and issues relating to healthy recovery from separation and divorce. Coaches provide emotional encouragement, teach stress management and communication skills, explore parenting help ensure that both partners' needs, concerns, and feelings are understood and expressed in constructive ways. They use an efficient, structured process for building up your competency, effectiveness, and resilience, all of which may be diminished as your marriage comes to an end. Also, they will teach you and your partner how to improve the quality of your communications and decision making as you move through the divorce negotiation process. They will begin to encourage you to think and dream about your personal futures and your future as co-parents, if you have children.

Collaborative divorce coaching is different from life coaching. Although collaborative divorce coaches may work at times in ways that resemble "life coaching," their mental health training, experience, and licensure requirements go far beyond what is require to work as a life coach. They undergo years of postgraduate study and clinical internships addressing family systems and human development, augmented by legally and professionally mandated continuing education to keep abreast of scientific advances.

You and your spouse will each have your own collaborative divorce coach to be your personal ally and helper. You will each meet privately with your coaches, as well as in four-way coaching meetings. Your coaches will help you and your spouse recognize and change unhelpful communication patterns that are often in place as marriages end. If you have children, your coaches will help you discuss your concerns about parenting them effectively when you are living separately. You will develop a plan for parenting with the help of the coaches, using the information provided by the child specialist.
Coaches are proactive: they will stay in touch with you throughout your divorce. Collaborative divorce coaches also like to help you take preventive measures, making it important to contact your coach if you have questions or you find something is not working for you.

Coaches almost always add value to the process and outcome. With their help, "meltdowns" can be dealt with so that necessary conversations can be had about difficult issues. This work helps you participate far more effectively in the four-way meetings with your lawyers. If the coaches aren't needed, or if their work finishes quickly, they will step into the background, remaining available if and when they are again needed.

3. The collaborative financial consultant

The collaborative financial consultant, who may be a certified public accountant or certified financial planner, assists with the gathering of financial information and the preparation of provisional budgets and property division spreadsheets. They are distinguished from similarly credentialed professionals by their additional special training as Certified Divorce Financial Analysts or the equivalent, and their training and experience in how to work as a member of a collaborative divorce team.
Meeting jointly with their collaborative divorce financial consultant, the divorcing partners have the opportunity - face-to-face - to review their financial documents and information together, ask questions, resolve misunderstandings, and appreciate their differences in money management experience, values, and risk preferences. This has the benefit of reducing distrust and developing accurate shared perceptions about the basic financial facts of the marital estate.

Collaborative financial consultants do not negotiate or resolve differences, but they do help identify them. They also work with you and your spouse to consider your financial future and various ways in which you can help ensure your financial stability as you move into your new life. Acting as a resource for developing and exploring settlement scenarios and flagging tax implications, the financial consultant works with the collaborative lawyers to help both spouses reach a shared understanding of real-world financial limitations as well as possibilities for expanding the financial pie. If documents are missing or questions remain unanswered, the financial consultant lets the lawyers know. If one of the spouses needs a basic education in checkbook balancing or budgeting, the financial consultant points this out and can provide the necessary skill training. This work allays fears on the part of both spouses because all financial disclosures are made together and the work is not finished until all questions about family finance have been answered candidly and fully. The financial consultant may attend four-way meetings but should never venture into negotiating issues or discussing possible terms of settlement with you or your spouse outside of the legal five-way table. In the rare event that a collaborative case terminates short of settlement and is taken to court, the financial consultant - like all the team members - may not participate in any court proceedings between you and your spouse. Nor may they provide investment services unrelated to the divorce. If you already have financial advisors, your lawyers may suggest working with them instead of including a neutral collaborative financial consultant on the team. Just bear in mind that while specialized financial advisors can bring expert depth of knowledge, they don't generally bring the kind of information-sharing skills the collaborative financial consultant has. Rely on your lawyers' advice about what mix of financial advice you and your partner should make use of during your collaborative divorce process, and give careful consideration to the particular skills that a collaborative financial consultant can bring to the table as you decide.

4. The child specialist

The child specialist focuses on your children's needs in the separation and divorce processes. The child specialist is a licensed mental health professional with particular training and experience in family systems, child development, and the needs of children during and after divorce. Working in a short-term, focused manner during the divorce process to support the children during the difficult transition they face, the child specialist advocates for the children during the coaching process. The child specialist also ensures that each child has a safe, private place in which to ask questions, share feeling, express needs, and address problems related to the divorce, giving children a rare opportunity to voice their thoughts and concerns and to be heard on the issues that are important to them without having to feel divided loyalty. The child specialist brings important information about children generally and your children specifically into the coaching process, ensuring that the emotional needs and concerns of each child are considered by both the parents and the other team members. The whole team works together to plan how the adults will share the parenting responsibility. With the child specialist's participation in these discussions, the agreements that emerge from the coaching sessions have more balance and flexibility because they take into account the changes in the family system from the children's perspective as well as from the adults'.

Every divorce is different

Please keep in mind that every divorce is different. For instance, some people begin with coaches, while others begin with lawyers or financial consultants. Some couples proceed on all three fronts simultaneously, while others have good reason for working intensively with one professional team member for a while before engaging in concentrated work with another.

Wherever you begin in your own collaborative divorce, you'll receive advice to take the stages in the right order. Ensuring that the work is done in the sequence that has proved most effective in getting to solutions is the job of your collaborative divorce team. While the details of each couple's pathway to resolution may vary, they know that the sequence of the collaborative divorce process - gathering information, recognizing values and goals, reaching consensus through brainstorming, and then, and only then - implementing solutions - is a source of its considerable conflict resolution power.

Saturday, February 17, 2021

Collaborative Law FAQ's

By Pauline H. Tesler
First published 1999; revised March 2007

What is Collaborative Law?
Collaborative Law is a new conflict resolution model in which both parties retain separate, specially-trained lawyers whose only job is to help them settle their issues, entirely outside the court system. If the lawyers do not succeed in helping the clients resolve the problem, the lawyers are out of a job and can never represent either client against the other again. All participants agree to work together respectfully, honestly, and in good faith to try to find "win-win" --or, good enough--solutions to the legitimate needs of both parties. No one may go to court, or even threaten to do so, and if that should occur, the Collaborative Law process terminates and both lawyers are disqualified from any further involvement in the case. Lawyers hired for a Collaborative Law representation can never under any circumstances go to court for the clients who retained them--either as lawyer, or as witness.

What is the difference between Collaborative Law and mediation?
In mediation, there is one "neutral" who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they are not necessarily present at the negotiation, their advice may come too late to be helpful, and they remain free to recommend and participate in litigation at any time.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is levelled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

What kind of information and documents are available in the Collaborative Law negotiations?
Both sides sign a binding agreement to disclose all documents and information that relate to the issues, early and fully and voluntarily. "Hide the ball" and stonewalling are not permitted.

What happens if one side or the other does play "hide the ball," or is dishonest in some way, or misuses the Collaborative Law process to take advantage of the other party?
That can happen. It also can and does happen in conventional legal representation. What's different about Collaborative Law is that the collaborative agreement requires a lawyer to withdraw if his/her client is being less than fully honest, or participating in the process with less than full good faith.

For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations, for instance an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.

How do I know whether it is safe for me to work in the Collaborative Law process?
The Collaborative Law process does not guarantee you that every asset or every bit of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works very hard to conceal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high, and the results uncertain.

You are generally the best judge of your spouse or partner's basic honesty. If s/he would lie on an income tax return, he or she is probably not a good candidate for a Collaborative Law divorce, because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty, then the process may be a good choice for you.

Is Collaborative Law the best choice for me?
It isn't for every client (or every lawyer), but it is well worth considering if some or all of these are true for you:

a. You want a civilized, respectful resolution of the issues.

b. You would like to keep open the possibility of friendship with your partner down the road.

c. You and your partner will be co-parenting children together and you want the best coparenting relationship possible.

d. You want to protect your children from the harm associated with litigated dispute-resolution between parents.

e. You and your partner have a circle of friends and extended family in common that you both want to remain connected to.

f. You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.

g. You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.

h. You value control and autonomous decisionmaking and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).

i. You recognize the restricted range of outcomes and "rough justice" generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.

j. You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.

k. You understand that conflict resolution with integrity involves achieving not only your own goals but finding a way to achieve the reasonable goals of the other person.

My lawyer says she settles most of her cases. How is Collaborative Law different from what she does when she settles cases in a conventional law practice?
Any experienced collaborative lawyer will tell you that there is a big difference between a settlement that is negotiated during the conventional litigation process, and a settlement that takes place in the context of an agreement that there will be no court proceedings or even the threat of court. Most conventional family law matters settle figuratively, if not literally, "on the courthouse steps". By that time, a very great deal of money has been spent, and a great deal of emotional damage can have been caused. The settlements are reached under conditions of considerable tension and anxiety, and both "buyer's remorse" and "seller's remorse" are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to do.

Nothing could be more different from what happens in a typical Collaborative Law settlement. The process is geared from day one to make it possible for creative, respectful collective problem-solving to happen. It is quicker, less costly, more creative, more individualized, far less stressful, and overall far more satisfying in its results than what occurs in most conventional settlement negotiations.

Why is Collaborative Law such an effective settlement process?
Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a "paradigm shift." Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families.

Collaborative lawyers do not act as a hired guns. Nor do they take advantage of mistakes inadvertently made by the other side. Nor do they threaten, or insult, or focus on the negative either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in.

Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process.

Collaborative Law offers a greater potential for creative problem-solving than does either mediation or litigation, in that only Collaborative Law puts two lawyers in the same room pulling in the same direction to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they pull in opposite directions. No matter how good a lawyer I am for my own client, I cannot succeed as a Collaborative Lawyer unless I also can find solutions to the other party's problems that my client finds satisfactory. This is the special characteristic of Collaborative Law that is found in no other dispute resolution process.

What if my partner and I can reach agreement on almost everything, but there is one point on which we are stuck. Would we have to lose our collaborative lawyers and go to court?
In that situation it is sometimes possible, if everyone agrees (both lawyers and both clients), to submit just that one issue for decision by an arbitrator or private judge. We do this with important limitations and safeguards built in, so that the integrity of the Collaborative Law process is not undermined. Everyone must agree that the good faith atmosphere of the Collaborative Law process would not be damaged by submitting the issue for third party decision, and everyone must agree on the issue and on who will be the decisionmaker. We often find, however, that parties who can agree on these matters can with determination arrive at their own solutions if they have the right kind of help from their collaborative lawyers.

What if my spouse or partner chooses a lawyer who doesn't know about Collaborative Law?
Collaborative Lawyers have different views about this. Some will "sign on" to a collaborative representation with any lawyer who is willing to give it a try. I believe that is unwise and I do not do that.

Trust between the lawyers is essential for the Collaborative Law process to work. Unless the lawyers can rely on one another's representations about full disclosure, for example, there can be insufficient protection against dishonesty by a party. Unless I have confidence that the other lawyer will withdraw from representing a dishonest client, I would not sign on to a formal Collaborative Law process (involving disqualification of the lawyers from representation in court if the Collaborative Law process fails).

Similarly, Collaborative Law demands special skills from the lawyers--skills in guiding negotiations, and in managing conflict. These are not the skills a conventional lawyer learns. Without them, a lawyer would have a hard time working effectively in a Collaborative Law negotiation.

And in rare instances some lawyers could even collude with their clients to misuse the Collaborative Law process, for delay, or to get an unfair edge in negotiations. For these reasons, I would not sign on to a formal Collaborative Law representation with a lawyer inexperienced in this model. That doesn't mean I could not work cordially or cooperatively with that lawyer, but I wouldn't sign the formal agreements that are the heart of Collaborative Law unless and until I had built a professional relationship of mutual trust with the lawyer.

Why is it so important to sign on formally to the official Collaborative Law Agreement? Why can't you work collaboratively with the other lawyer but still go to court if the process doesn't work?
The special power that Collaborative Law has to spark creative conflict resolution seems to happen only when the lawyers and the clients are all pulling together in the same direction, to solve the same problems in the same way. If the lawyers can still consider unilateral resort to the courts as a fallback option, their thought process does not become transformed; their creativity is actually crippled by the availability of Court and conventional trials. Only when everyone knows that it is up to the four of them and only the four of them to "think their way" to a solution, or else the process fails and the lawyers are out of the picture, does the special "hypercreativity" of Collaborative Law get triggered. At the moment when each person realizes that solving both clients' problems is the responsibility of all four participants, that is the moment when the "magic" can happen.

Collaborative Law is not just two lawyers who like each other, or who agree to behave nicely. It is a special technique that demands special talents and procedures in order to work as promised. Sometimes traditional lawyers will offer to work cooperatively with the other lawyer and will make efforts to reduce costs and reach settlement. Any effort by parties and their lawyers to resolve disputes cooperatively outside court is to be encouraged, but remember: if the lawyers can ever take the case to court, you may think you are getting more--but you are getting less, in terms of skill and commitment in reaching real resolution. It's not Collaborative Law if the lawyers can go to court. Only Collaborative Law is Collaborative Law.

Where can I get more information about Collaborative Law?
Read my book, co-authored with psychologist Peggy Thompson, entited Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, published by Harper Collins in 2006. Or, you can find audio and video clips about Collaborative Law and interdisciplinary Collaborative Divorce at my website, www.teslercollaboration.com. And the website of the International Academy of Collaborative Professionals, www.collaborativepractice.com, will help you locate a collaborative practitioner near you.

Friday, February 16, 2021

COLLABORATIVE DIVORCE: A Team Approach to Divorce

The following is an article by Pauline H. Tesler about Collaborative Divorce, originally published in the American Bar Association Young Lawyers' Division newsletter.

Ms. Tesler is an author, a trainer, a specialist in family law certified by the California State Bar Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, and a recipient of the first ABA Dispute Resolution Section’s Lawyer as Problem Solver Award.

Psychologist Abraham Maslow said, “If your only tool is a hammer, all problems tend to resemble nails” - a maxim that goes far to explain why the conventional tools and techniques we lawyers have traditionally had available to us for handling divorces so rarely produce satisfied clients. Many family lawyers initially thought that mediation, which took root in the family law field during the eighties, might bridge the gap between the obvious needs of divorcing families and the poorly-matched tools and resources available to them in court-based legal conflict resolution. That hope did not bear fruit. Mediation works well for some, but not all or even most divorcing couples. As mediator and mediation theorist Bernard Mayer has observed, the strictly neutral role of a mediator does not always serve clients well, because alongside a desire to reach a contained settlement, clients at the same time have a need for support and advocacy that a neutral mediator cannot provide.

In mediation, one neutral conducts the conflict resolution process, with the spouses negotiating directly, face to face. The mediator, who must maintain neutrality, cannot counsel individual parties or do much to level an unequal bargaining table or to address obstructive or non-constructive participation by a party. Individual legal counsel may or may not be present during the mediation, but in either case, the lawyers do not participate directly in negotiations. Instead, they advise clients privately about the law, the issues, and the proposed resolutions. This creates an inherently unstable structure in which the lawyers are not fully aligned with the goal of settlement and, indeed, may advise clients to terminate the mediation process and litigate instead.

Collaborative Divorce Introduced
Collaborative divorce (also called collaborative law, collaborative family law, and collaborative practice) has become highly visible in the field of family law in the United States and Canada since its introduction in the early nineties, and now is spreading rapidly in Europe, in Australia, and in New Zealand. The remarkable speed of its acceptance among family lawyers can be attributed to the fact that it works toward the same goals that mediation seeks: contained, civilized, constructive, self-determined, interest-based conflict resolution, but without the inherent weaknesses that render mediation difficult for many divorcing couples.

In contrast to mediation, the negotiations in collaborative divorce take place in direct meetings conducted with clients present and at the forefront, and with collaborative counsel by their sides. The negotiations are guided and managed by the same two lawyers who provide the legal counsel, advocacy, and support that divorcing clients so often need. These lawyers are allies and advocates, not neutrals. Significantly, both lawyers and both clients sign a binding contract that precludes those two collaborative lawyers from ever threatening litigation or taking the matter to court. If the collaborative process terminates, both collaborative lawyers must bow out and hand the matter over to new litigation counsel.

The Nuts and Bolts
The nuts and bolts of collaborative law are as follows:

  • Each party is represented by a specially trained collaborative lawyer.
  • These two collaborative lawyers are bound by the same professional ethical mandates that all lawyers must honor.
  • The lawyers are retained pursuant to a “limited purpose retention.” The sole purpose for which the lawyers are hired is to help their clients reach a reasonable, acceptable settlement of all issues, without litigating or threatening to litigate.
  • The clients retain their right to terminate the collaborative divorce process and to take their issues to court, but the collaborative lawyers and other collaborative professionals cannot go with them.
  • Information is shared fully and freely, on request. Hence, suspicion and paranoia drop dramatically from what is normally experienced in litigation.
  • All negotiations take place directly, face to face, in “fourway” settlement meetings. The lawyers do not bargain as agents in the absence of their clients. Interest-based negotiations are the preferred mode, not positional bargaining.
  • In addition to a collaborative lawyer, each party is encouraged to have a divorce coach to help the party constructively articulate emotions and key issues.
  • Instead of being kept in the dark and out of the loop, the clients’ children have a voice as well. When couples choose a fully-staffed interdisciplinary collaborative divorce team, a neutral child development specialist is included. This professional listens to the children’s chief concerns and helps the family to address them in a separate meeting with the coaches.
  • Finally, a neutral financial consultant helps parties and lawyers gather the financial data, analyzes the family resources, and helps the couple to understand the size of the pie, offering creative solutions for consideration that can be far beyond a court’s power to order.2Plus there are no hidden finances or surprises and as a result many couples under stand their money situation better than before. Instead of playing the litigation game of “hide the ball,” this consultant ensures that all financial questions are answered and all necessary information is brought to the table so that sound solutions can be devised. With the financial consultant’s help, many couples do not just reach divorce agreements—they also understand their money situation far better than ever before.
  • These professional helpers all work together to help a couple focus not just on reaching a “quick fix” settlement agreement, but on laying a foundation for optimum communications and problem solving during the period of rapid changes a couple can expect after the legal divorce judgment has been entered. They remain available as needed to help couples adjust their parenting plans in light of actual experience during the months and even years following entry of judgment.

Why Collaborative Divorce Training is Essential and How to Get It
If you are interested in learning more about collaborative divorce, the starting point is to obtain high-quality collaborative training. Collaborative practice requires special skills that lawyers do not learn in law school, in court, or in mediation trainings, and you cannot do it competently without taking the time to learn this new craft. Here are some pointers to keep in mind.

  • There is a wealth of information available at www.collaborativepractice.com, the website of the International Academy of Collaborative Professionals (IACP). There you can find local practitioners and practice groups in your region, announcements of training programs and conferences, collaborative law publications and other professional member resources, and materials about collaborative divorce for distribution to clients.
  • IACP has promulgated standards for practitioners and trainers, as well as ethical standards, that you should become familiar with. A basic training that meets IACP standards consists of two days, or twelve hours, of instruction, role-play, and discussion.
  • There are now many books on collaborative divorce available for professionals, including Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, written by this author.
  • The first book for general readers, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On with Your Life, is a good basic orientation to collaborative law and to interdisciplinary team collaboration.

SOURCE: American Bar Association

Tuesday, February 13, 2021

Pauline Tesler to speak and train in New Zealand and Australia in May

Pauline Tesler will speak and present trainings for lawyers in May at three advanced family law conferences to be presented by LexisNexis, in Aukland, New Zealand, and Brisbane and Sydney, Australia.

Here's the schedule:

Aukland, New Zealand:

May 17: conference keynote address
May 18: half day seminar/workshop to introduce collaborative law to lawyers

Brisbane, Australia:

May 21 and 22: Two-day training for lawyers
May 23: conference keynote address

Sydney, Australia:

May 24: conference keynote address
May 25 and 26: Two-day training for lawyers

Contact LexisNexis of Australia for further information.

Monday, February 5, 2021

Judges see benefits of collaborative divorce process

In a recent article published in the Springfield, Massachusetts "Republican," two experienced familiy law judges go on record as supporters of collaborative divorce as the wise way to get professional assistance during separation and divorce. Judges know what you can expect from the traditional 0ld-style court-based divorces, and they don't recommend you try it.

Here is an excerpt from the article:

"Judge David G. Sacks, probate and family court judge in Hampden County for more than 20 years, has seen significant change in the family court from his seat on the bench, but his admonition to those who appear before him on contested matters has remained the same: "This is the last chance you have to control your own destiny."

Sacks strongly believes that the parties themselves can do a better job in writing the script for their future than he can.

Judge Gail S. Perlman, probate and family court judge in Hampshire County, has observed that over the last two to three decades the legal system has come to see that the traditional way of solving problems in the courts is not the best way for families to solve their problems. "The traditional legal system is a legal necessity but not the tool of choice. Mediation and collaborative law often serve families better, and I welcome that," she said.

Both Sacks and Perlman have taken notice that, in general, the parties who successfully participate in a collaborative divorce appear to have benefited from working productively in a process that assisted them in reaching an agreement without the time, expense and emotional turmoil of traditional litigation.

In particular, cases involving children require some urgency in establishing stability, and collaborative law provides an opportunity to jointly engage a child specialist to ensure that the children's needs are addressed. "Any tool that helps families maintain ways of being parent partners post-divorce is positive," Perlman said.

Perlman has made some inquiries of parties who present a separation agreement after participating in a collaborative divorce process. She asks if the parties are satisfied with the collaborative process and has found that they are uniformly positive about it.

"I have noticed a difference in the way the parties present themselves. I see two people who are comfortable, who have used the process to establish open communication," she said.

Sacks sees the collaborative law movement as one of the many positive changes taking place in the family court. "The process of litigation is not a panacea," he said.

Sacks has found that alternative dispute resolution, including collaborative law, can provide more predictable results and can be more economical for families."

You can find the article at:


Thursday, February 1, 2021

Forthcoming collaborative law and collaborative divorce trainings

Pauline Tesler will be offering trainings in collaborative family law practice during March 2007 in Edinburgh, Scotland; Belfast, Northern Ireland; Dublin and Cork, Irish Republic.  For further information, contact Pauline's law office and ask for the name of a local contact person in the city of interest.

Pauline H. Tesler
Tesler, Sandmann & Fishman
163 Miller Avenue, Suite 4
Mill Valley, California 94941
Telephone: (415)383-5600
Facsimile:  (415)383-5675

www.divorcenet.com/ca/tesler.html                   www.collaborativepracticesfbay.com