Collaborative Practice Better For Families
Steven D. Popell and Nancy Ligon De Ita
Second Installment Structure and Process
Introduction
In the first installment, we discussed the ways in which Collaborative Practice is different from, and often yields far better outcomes than, a litigated divorce. We also described the Collaborative (especially the team) model and the professionals who typically comprise that team.
In this second and final installment, we review structure and process, and the ways in which these elements are designed to serve the needs of the spouses and their children. In addition, we look at cost and comparisons with mediation.
Meeting Structure
Typically, all discussions and negotiations between the parties take place in 4-way meetings that include both attorneys and both spouses, or both coaches and both spouses. A 5-way meeting might comprise both attorneys, both spouses and, for example, the Financial Specialist. Meetings that bring together four or five people ensure that all participants are hearing the same thing at the same time, and facilitate a greater understanding of the other party’s most important interests.
Children – Vulnerability and Needs
Children often suffer most from a divorce, and are least able to understand or express their needs, wants and feelings. Not infrequently, a child will tell each parent what s/he thinks that parent wants to hear, or what seems best designed to keep the peace. Therefore, if there is at least one minor child in the family, a Child Specialist can become an important member of the team to ensure that the “voice” of the child is heard.
This mental health professional would meet privately with each child to assist him or her to articulate concerns, desires and interests. The Child Specialist will also meet privately with each parent to convey these insights in a non-judgmental atmosphere. With this information and advice, the parents can make better-informed decisions about their children with greater confidence. The Child Specialist typically does not make recommendations regarding parenting options.
Other Specialists
Depending on the specific situation, other professionals may be added to the team for their specialized knowledge in areas such as business valuation, real property valuation or vocational education. Unlike the permanent team members described above, these individuals will typically have a relatively narrow charter, and will function on an as- needed basis. In addition, they will be expected to provide an opinion, not just facts or analysis.
Cost
With all these other professionals in the process, one might think that Collaborative Practice would be costlier than litigation. However, because mental health professionals and financial specialists charge far lower hourly rates than experienced family law attorneys, the overall cost will often be less than with litigation. While a couple should not choose Collaborative Practice solely to save money, concerns about cost should definitely not be a barrier to selecting this alternative.
What About Mediation?
Mediation and Collaborative Practice in family law have much in common. Both seek to help divorcing couples reach a non-adversarial and durable settlement, and place a high priority on full disclosure, effective communication, interest-based negotiation and creative problem solving. Both insist on the parties “owning” the problems and the solutions. Not surprisingly, the profiles of the spouses who are appropriate for one process or the other are also remarkably similar.
• At least a modicum of good will towards the other spouse • Child(ren) the #1 priority • A strong desire to reach an amicable settlement out of court • A genuine concern for the principal interests and desires of the other spouse
An important difference is that in Mediation, there is one neutral attorney whose role is to guide the process and facilitate effective decision making. S/he is precluded from providing partisan legal advice to either party. Therefore, each spouse must, in essence, “represent” himself or herself in the negotiation, and an imbalance in power can tilt the playing field significantly. While the mediator will try to minimize any unfair advantage the more powerful spouse might enjoy, this task can be very challenging.
Therefore, if the couple functioned largely as equals and co-decision-makers throughout the marriage, Mediation can be very effective. However, if one spouse has been, and continues to be, dominant, Collaborative Practice may be more successful in facilitating a fair settlement. Conclusion
Going through a divorce can make even a strong individual feel isolated and alone. The Collaborative Practice team of skilled and compassionate professionals helps couples to control the key elements of this process (legal, emotional, financial and parental) rather than be controlled by them. A respectful and communicative divorce process can help preserve key family ties and relationships that are especially critical where co-parenting responsibilities will continue for years to come.
Certainly, not all litigated divorces are destructive, nor does every Collaborative Practice process succeed with flying colors. But for most couples, it is far better to work it out than to fight it out – for them and for their children. Collaborative Practice holds out a realistic prospect of both a “win-win” settlement and a constructive framework for future decision making. Steven D. Popell is a Business Valuation Specialist practicing throughout the Bay Area. He pioneered neutral business valuation in divorce in the early ‘80s, and has published extensively on this and related topics in Family Law News, The Collaborative Review and Community Property Journal.
Nancy Ligon De Ita is a family attorney practicing litigation, mediation and collaborative law in San Mateo County. She is the State Bar Family Law ADR Bay Area Chair, a Director of the San Mateo County Bar Assn., and a member of the San Mateo Superior Court ADR Oversight Committee.
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