The Collaborative Law and Mediation Choices
The goals of the collaborative law process and the mediation process are: to create an environment in which each party can have his and her legitimate needs met; to assist the parties in gathering all necessary information and analyzing that information for choices and options; to assess all options determining the consequences of each; to guide the parties in developing settlement ideas and to help them negotiate a durable and lasting agreement.
“I am convinced that many divorces are turned into bad divorces by the very nature of the adversarial legal system. Traditionally, lawyers are trained to be adversaries and to represent their individual clients zealously, however the concept of “opposing parties” aggravates divorce-related conflicts. I believe that the previous litigious approach often set the spouses on the wrong road, encouraging them to engage in high conflict with one another and to give up responsibility for decision-making to their attorneys and to the court. As a collaborative lawyer and mediator, I am a dedicated advocate for my client and for what they truly care about most.”
I have been a mediator since 1985, but it wasn’t until my introduction to Collaborative Law in 2001 that I was able to give up my litigation practice in matrimonial law. I believe that mediation is a good choice for some couples, however, when a couple needs more support and guidance than can be given by one neutral mediator, the only choice before the advent of Collaborative Law was to engage court-based lawyers to settle in a traditional positional manner or go to court.
Since 2001, I have been championing the development of Collaborative Law in our greater Rochester, New York community and by presenting trainings throughout the United States and Canada. Minneapolis attorney Stuart Webb developed this alternative process in 1990 to give spouses a way to end marriages cooperatively, face-to-face, with the help and guidance of attorneys, but without going to court. Building on his concept, my trainings with Stu and others are directed to attorneys and all affiliated professionals who assist clients through the separation and divorce process. Couples are asking for help in addressing relational, emotional, financial and legal issues. The trained professionals help their clients remember the needs of the children to be kept out of the middle of parental conflict.
Collaborative Law is the practice and art of settling issues with legal counsel, but without court intervention at any stage. All negotiations take place in joint conferences between the spouses, their attorneys and other professionals chosen to assist. Each client has built-in legal advice and advocacy during negotiations and each attorney is committed to guiding their clients toward reasonable resolutions, crafted to meet their unique circumstances. The attorneys cannot go to court or threaten to go to court.
Mediation is the practice and art of facilitating settlement between the clients, without court intervention at any stage. Negotiations take place in three-way conferences. At times, the clients may elect to have their consulting attorneys participate when legal issues are being addressed. The mediator is committed to supporting their clients in reaching reasonable and mutually acceptable resolutions, crafted to meet their unique circumstances. The clients commit to resolve their issues at the table and to refrain from threatening to go to court.
In Collaborative Law and in Mediation, a respectful, creative effort to meet the legitimate needs of both spouses and their children replaces positional bargaining backed by the threat of litigation. Settlement is the only agenda and all involved rely upon the utmost in cooperation and integrity. Clients can rebuild trust in one another one small step at a time, keeping commitments, showing respect and demonstrating good will toward one another.
I am actively involved in expanding the mediation and collaborative processes to incorporate mental health professionals to help the clients deal with the emotional fallout of the end of the marriage, parenting issues, and development of communication skills. The mental health “coaches” receive specialized training to coordinate their efforts everyone supports the spouses through this difficult time. If a child specialist is needed to meet with the children, the parents can agree to enlist the aid of that professional. Financial consultants (accountants or certified financial divorce analysts) receive specialized training to help educate the spouses about financial decisions and supplement the efforts of the collaborative attorneys. In the Collaborative Process, for higher conflict matters, the addition of a Mediator/Facilitator can make the entire process move more smoothly and efficiently as they focus on optimum communication of all participants. If an expert is needed to evaluate an asset of the marriage, be it a degree earned during the marriage or the valuation of a business interest, the parties agree on one neutral professional.