You might find yourself thinking, “What in the world is collaborative about the practice of law?” After all, ours is an adversarial system employing two hired guns in each case to present opposing views to a judge or jury for determination, right? For the vast majority of cases, that is the way things work, but for some lawyers and clients, there is actually another option. A non-adversarial one.
Back in the early 1990s, a Minnesota family lawyer named Stuart Webb, after more than 30 years of litigating and mediating divorce cases, grew discouraged by the general dissatisfaction of his clients even those for whom he was able to achieve outcomes that were most favorable under the law. Desperate to find a better way, he pursued the idea that lawyers, hired as settlement specialists, might be able to guide clients to more satisfactory outcomes. His idea, collaborative law, started as two lawyers and their respective clients signing a contract that would limit the lawyers’ role to the work of negotiating a resolution and if settlement could not be achieved, the lawyers would not represent their clients in litigation. The Supreme Court of Minnesota approved Webb’s idea thus was born this version of limited scope representation.
Over time as Webb’s idea caught on and its use spread across the country, the collaborative approach evolved to incorporate the use of other professionals. Collaborative practice now refers to an interdisciplinary team approach that employs mental health and financial professionals in addition to lawyers. Why all three professions? First, the parties are invariably not at their emotional best due to the impact of grief and all the feelings and fears that come with any sudden, multidimensional life change. Plus, making decisions that will have sweeping and lasting impact on the family are better made with a clear head. Mental health professionals are able to act as coaches to assist the parties with these emotional and communications challenges and to make it possible for them to make clear-headed decisions.
Second, the parties need good information to be able to make informed decisions regarding the division of assets and distribution of income. Some people have never created a budget before, others don’t know what the assets of the marriage are, or have never had any involvement in the management of the family’s resources. In high net worth cases, there may be need for valuation of a business or for financial projections to understand possible implications to each party of various means of dividing assets. Having a financial professional who is neutral and able to marshal the financial information needed is an invaluable addition. Finally, because this is a legal dispute, we need lawyers to navigate the process to its legal conclusion.
Sound unwieldy and expensive? Well, it can be! But when the professionals involved are well trained in collaborative practice, and the process is well-managed, the results can be remarkable. Instead of a process that forces a rehashing of the breakdown of the marriage and the faults of each party, and that limits outcomes to those a judge would impose, the parties are able to explore their goals and interests, consider the needs of their children, and come up with creative solutions.
And, yes, collaborative practice is an option for divorcing couples in Alabama and is an ethical and viable method for lawyers in our state. Alabama was, in fact, one of the earliest adopters of the Uniform Collaborative Law Act and our Supreme Court has since also enacted rules for collaborative practice. The cornerstone of the process is a contract between the parties and their lawyers not to threaten litigation and that requires the lawyers to withdraw if settlement isn’t reached. The parties also agree to voluntarily produce all documentation and information that is necessary for making informed choices in the process.Frances Ross Nolan