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.