NEW JERSEY COLLABORATIVE LAW – COLLABORATIVE DIVORCE
Collaborative Divorce(SM) Alternative Dispute Resolution (ADR) helps lawyers for both parties in a divorce or other matrimonial, family or custody dispute to assist clients in resolving conflict using positive cooperation-based negotiated problem solving strategies instead of adversarial techniques and litigation. It is recommended, however, that the Collaborative Law approach be implemented within the context and results-oriented philosophy of Progressive Divorce ®.
Inquiry is asking a genuine question. By asking real questions, information is truly sought. Rhetorical or leading questions are a kind of advocacy in disguise. Please review our Articles page, particularly the Matrimonial Strategist column entitled “How to Improve the Quality of Interviews, Meetings and Settlement Conferences by Learning to Use Advocacy and Inquiry More Effectively.”
Collaborative Divorce lawyers are still client advocates, just not “adversaries.” They are there to support their individual clients and will work with their clients to settle the divorce issues, but with the further understanding that the lawyers will not participate in contested court proceedings.
While the overarching objective in competent divorce lawyering is finding a way for the parties to reach agreement on all relevant issues, in the collaborative law setting, the parties and their attorneys work toward agreement before either party has been served with divorce papers, instead of involving the courts at the same time the parties are trying to get agreement.
Collaborative lawyers and their clients have to learn to act non-adversarially, to check anger, resentment and competitiveness at the door and to come to the bargaining table with the spirit of good will and motivation to work things out. The key objective of collaborative lawyers is to help disputing parties arrive at a fair settlement and get on with their lives.
Collaborative Divorce is distinguishable from traditional methods in yet another aspect. In order to proceed along the typical litigation path,
formal discovery is usually conducted. Documents are demanded, interrogatories propounded, subpoenas served and oral depositions convened. If one party resists providing the necessary information, motions to compel or to strike can be filed. If one of the parties demands an overly burdensome amount of information from the other, the complaining party can file a motion for a protective order. If there are issues involving the possibility of hidden assets or understated business income, forensic accountants can be retained by the parties or appointed by the court, in order to dig into business records and analyze cash flow. Discovery battles can become cripplingly expensive.
The typical setting for Collaborative Law settlement work is in the form of 4-way conferences – the parties and their lawyers sit around a table and discuss the issues to seek ways to get agreement. While the 4-way settlement conference is an indispensable and time-tried method for handling even the traditionally litigated case, many adversarial lawyers neglect this valuable process, opting instead to file motions to attempt to get what they want. Many resort to writing letters back and forth, rather than picking up the phone to discuss problems collegially with their opponents. This is rarely the best way to handle cases. In fact, such practices promote further polarization. When a problem comes up on a case, the lawyer’s first thought should be “We’ve got to get together and solve this!” rather than “I’ve got to dictate a nasty letter!”
Conferencing is the ideal setting for dialoguing, constructive inquiry and problem solving. It’s one of the relatively few methods where individual parties can step out of their own skins for a bit, in order to see things from the other’s point of view. The process helps to free people – both lawyers and clients – from rigid position-based thinking. Conferencing also affords both attorneys the opportunity to “model” appropriate problem solving behaviors, rather than adopting and magnifying any negative emotional responses that may surface from time to time.
Similarly – if done correctly – the conferencing culture helps lawyers avoid behaving badly themselves. It is quite common for divorce lawyers to get caught up in their client’s issues, disappointments and even outrage. The conferencing culture establishes a bargaining ethos runs contrary to self-defeating behaviors.
Once the parties reach agreement through collaborative law, the next step is for the partie’s lawyers to draft legal documents to convert their informal agreements into legally binding ones, which are then submitted to the Court. These documents are typically limited to a Complaint for Divorce with a signed Matrimonial Settlement Agreement attached as an Exhibit and a Final Judgment of Divorce.
Depending upon the County, sometimes a Court appearance may not even be necessary. However, an Uncontested Hearing is advisable, unless the issues resolved in the Matrimonial Settlement Agreement are quite basic.
If the parties cannot reach settlement with their lawyers help, there may be an exploration of whether they may want to try an alternative way to resolve their matter, such a binding or non-binding arbitration. If not, then their lawyers would withdraw and the parties would proceed to obtain attorneys to proceed to litigate the matter and prepare for trial…if it comes to that.
Although one would think settlement would be “Plan A,” even for litigation attorneys, many attorneys are drawn to the Courthouse like moths to a flame. Once in Court, however, the moth’s wings burn while time, costs and distress escalate.
This unfortunate tendency created the impetus behind Collaborative Law and other ADR movements. Lawyers, by definition, may not attend adversarial court proceedings in the collaborative law context. Collaborative divorce lawyers are forced to become settlement specialists. Like the English system – where barristers go to trial and solicitors do not – such is the case of the Trial Advocate and Collaborative Lawyer. The trial lawyer is a trial specialist, while the collaborative lawyer’s role is limited to and focused upon settling the case. Different skill sets and mannerisms are employed by each. There is typically a marked difference between a 4-way conference in the context of a litigated case – where posturing is common and “war faces” often worn – and those taking place in the collaborative setting.
Note, that while there is some dispute and uncertainty about the origin of Collaborative Divorce SM or Collaborative Law, Mr. Romanowski introduced his first collaborative family dispute resolution model back in 1988. Romanowski is President of the Collaborative Family Institute, LLC, and employs the service mark (sm) “Collaborative Divorce.” There is at least one other organization in the United States using the identical service mark, entirely unrelated by affiliation or ideology to the Collaborative Family Institute.