An Experience with Collaborative Practice
By Kristin Langdon Arcuri, Esq.
& Bridget M. O’Connell, Esq.

            Since it was first developed in the 1980’s, the practice of collaborative law as an alternative to the traditional Action for Divorce is becoming more common place in Western New York.

Collaborative law is characterized by respectful, good-faith negotiations utilizing interest-based discussions in an open and honest exchange of information between parties. This collaborative means of problem solving is aimed at producing creative, individualized solutions while avoiding litigation.

            Parties move away from highly charged positional arguments and the use of the court system; instead engaging with counsel in open communication during four-way conferences. The ultimate goal is to resolve all of their issues by creating a mutually acceptable settlement agreement. Another underlying principal in collaborative practice is that the parties and their attorneys sign a binding agreement that counsel must withdraw their respective representation if either party chooses to go to court.

           What distinguishes the collaborative process from mediation is that each party is represented by his or her own attorney. Those lawyers provide advice and assistance and help guide the parties, but it is the parties themselves, who by expressing their own thoughts, beliefs, needs and interests, drive the process and determine the outcome.

           There are many reasons for choosing to use the collaborative process. Some people wish to reduce the stress that accompanies litigation. Others cite privacy concerns. Many desire to preserve their co-parenting relationship by engaging in productive and cordial discussions about those matters. Still others mention religious reasons or a strong desire to restore control in their own lives. Collaborative practice allows the parties to determine the final outcome. It also enables them to structure the entire process rather than being dependent upon the courts. This collaboration allows the parties to be masters of their own fate and the future of their children rather than having a stranger decide for them.  It can be also be an educational process which allows the parties to practice the negotiation and problem solving skills they will need as they co-parent and co-exist in the future.

            Careful and continuing dialogue needs to occur so that the parties and their respective counsel are aware of all important issues. This is a two way consultation so that the attorney and client may share information, ideas and strategies. During the first four-way meeting, the clients and their attorneys set out the ground rules for future meetings and also establish the rights, duties and obligations of all those involved in the collaborative process.

            In a recently completed collaborative case, the wife was able to compare what had just been accomplished with the litigation track followed in her first divorce. She stated that she wished she had used this process in both cases.

            The parties had a short-term marriage after a lengthy history of dating. Both were employed and had acquired some assets together although there were several separate assets belonging solely to the wife. They had also jointly incurred substantial debt and had struggled to keep afloat. Each had expressed personal anxieties about the nature of the debt and also the need for each to gain control over their finances as well as in other of their lives. Both parties told their lawyers that they did not wish to have the matter dragged out.

            After the first four-way meeting counsel were concerned that the matter might not proceed collaboratively, because of a seeming lack of commitment by one of the parties.  However by the second meeting the parties established that they would commit to the process and the doubts initially raised by counsel were dealt with at the table to everyone’s satisfaction.

            During the next two meetings the parties were fairly emotional and struggled with many issues and decisions. It was apparent that the process was permitting the parties to explore and discuss matters in a way that allowed for compromise based upon a real understanding of the circumstances and of the potential consequences of their choices.  This led to them taking joint action on their financial problems. Ultimately, a comprehensive agreement was reached and signed by the parties after only four monthly meetings. 

            It was evident from both the process and the outcome that the time spent was used much more efficiently than it could ever have been in litigation. There was a set agenda for each meeting so that everyone knew in advance what was expected of them.  This made the entire process a team effort and placed responsibility on everyone to come prepared and ready to work. When that was not possible, the matter was simply rescheduled. The process also streamlined discovery. Parties were made accountable to produce certain documents and supporting information and did so in a manner consistent with a previously established timeline. 

            The four-way conferences gave them the opportunity to discuss the legal ramifications of the other’s proposals and the practical consequences of divorce (e.g.: transferring car insurance, obtaining life insurance, name changes, etc).  The process also created an environment conducive to “brainstorming.” This in turn led to jointly developed creative solutions which brought about the desired end result.  The parties also were able to engage in beneficial financial planning that is not typically provided in litigation.   

            Finally, it was apparent that parties became empowered to ask questions of each other and counsel which they otherwise may not have been able to ask or which may have led to unproductive arguments outside of the process. Instead those same inquiries became productive discussions within the process. The parties left with a full understanding of the agreement, having had an opportunity to review it with counsel and each other. They had experienced the real give and take that goes into a durable and dynamic settlement. As their lawyers we can attest to the efficiency of this process in comparison to litigation where we would most likely still be in the midst of the discovery process awaiting our next court date.
More information is available about the process of collaborative law at www.collaborativepractice.com.  Having had such a positive experience, we encourage clients and other attorneys to inquire about this option as they face difficult and complex family law issues.