“Discourage litigation. Persuade neighbors to compromise whenever you can. Point out how the nominal winner is often the real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of becoming a good man.”

- Abraham Lincoln

Collaborative Law – A Better Way

—By Suzanne L. Brunsting, Esq.

Resolving marital issues through collaboration, not conflict, is a new approach to family law based upon the commitment that neither the attorneys nor their clients will see the inside of a courtroom.

Across the United States and Canada, lawyers are enthusiastic about the new practice model and their clients are gratefully appreciative. It's about time, really, for a ceasefire. A courtroom is not the best place to settle most disputes, particularly family law matters. Minnesota attorney Stu Webb invented collaborative family law in January of 1990. "I was getting so burned out with the adversarial system, I was ready to quit practicing law," remembers Webb, who had been a litigator for almost 20 years. "I thought if I was willing to quit, then maybe I could find some way to do it outrageously." His "outrageous" solution was to declare that he wasn't going to court anymore. As it has turned out, Webb's solution wasn't so outrageous; it has made a powerful difference. Today, there are 56 like-minded attorneys in the Rochester area who have joined together as members of the Association of Collaborative Family Law Attorneys.

Clients really identify with the collaborative law approach quickly. They get this. Solving the family law problems together in four-way conferences gives clients control over the process. Instead of positional bargaining, the attorneys help clients identify and communicate their financial, emotional, and family interests and needs so that the end result is the best possible result. All negotiations take place in four-way conferences between the parties and their attorneys. Each client has built-in legal advice and advocacy during negotiations. Settlement is the only agenda and all involved rely upon an atmosphere of cooperation and professionalism.

“There's also the opportunity and potential to be much more sophisticated than in court," adds Webb. He cites an example of two people fighting over an orange, which they end up dividing in two. "One person takes his half home and squeezes it for juice. The other person grates off the rind to add to a pie. If they'd both disclosed their interests, one could have had all the juice and the other all the rind, and they each could have gotten what they wanted from the whole orange." Says Webb, "No court can make as good a decision as the parties."

Collaborative Law is the best choice for couples who share a commitment to settlement, have the ability to compromise and see the other's point of view, and want experienced legal advice and skilled problem-solving built into the settlement process. The results are often more creative than in other approaches, because neither attorney succeeds unless both spouses' legitimate needs and interests are met.

The average Collaborative Law case is resolved within two to six months and cost less than traditional representation, but the benefits are measured in more than just time and money. Clients and attorneys agree in advance to treat each other with respect. People are much more polite. The result is a cooling of the heated emotions that litigation tends to inflame. A collaborative approach results in happier clients and less stress for everyone.

I am convinced that many divorces are turned into bad divorces by the very nature of the adversarial legal system. Lawyers are trained to be advocates. We are supposed to represent our clients zealously, but once clients are set up as opponents, divorce-related conflicts can escalate. Spouses are prepared to do battle rather than encouraged to communicate and cooperate. And when they do settle the case, they often settle for the wrong reasons - because the parties are emotionally or economically exhausted or afraid of the judgment. Around the country, the collaborative process is working well in other areas of the law and has been particularly useful for any dispute where the parties involved have a continuing relationship, such as employment, estate and business disputes.

Collaborative law is not for every attorney, every client or every case. Attorneys forego the options of positional bargaining and adversarial court applications and need to hone different problem-solving skills. Clients give up the comfort of a hired gun or mouthpiece and must communicate with the other spouse about their perceptions of fairness and reasonableness. Further, Collaborative Family Law is not appropriate for cases where there is domestic violence, untreated drug or alcohol abuse, or impairing mental illness.

Maybe it is because we see and feel the destructiveness of litigation over child custody and other issues in family law cases that the domestic relations attorneys have taken the lead in learning about Collaborative Family Law. In the summer of 2001, 30 of the Rochester area’s experienced matrimonial attorneys began meeting and formed the Association of Collaborative Family Law Attorneys. We have just completed a second training and now have a total membership of 56 attorneys. We have refined the participation agreement, arranged for training programs, built a web site, and developed a brochure which we are distributing to therapists, children’s services agencies, new clients and their spouses

For more information, please call any of the participating Collaborative Family Law Attorneys listed on the web site: www.nycollaborativelaw.com.