Collaborative family law: The process and the purpose

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The collaborative process is a low-conflict style of family law practice. The collaborative model, which was adopted and has been successfully undertaken in Wisconsin, is the multidisciplinary team approach to resolving family law cases.

A couple that wishes to employ the collaborative process for a divorce, separation, pre-nuptial agreement, paternity, same-sex separation, visitation or other custodial matter, will retain his or her own attorney. Each party will meet individually with that attorney, but then most meetings will take place in four-way negotiations.

Each party will also retain a collaborative coach. The coach is a mental health professional specifically trained in the collaborative process and not retained for the purpose of therapy, but employed with the understanding that each party might have some fairly strong emotions surrounding the family law issue. Those emotions can get in the way of good decision-making, impair objectivity, and impede communications between the parties.

The coaches help the parties reframe the discussion to make it more productive and constructive. The parties meet individually with their coaches then come together in four-way meetings to discuss issues or emotional obstacles to success.

Some divorcing couples might meet with their coaches once. Other families might need to use their coaches on a continuing basis, having them present even at meetings with the attorneys. The low conflict manner of collaborative process does not necessarily mean that things go smoothly all the time, or that tempers don’t flare: they can and they do.

Having coaches available to help parties regroup during stressful times proves quite valuable and keeps the process moving forward toward resolution.

Cases with Kids

Child specialists are used for cases with children. The child specialist is a neutral whose job is to meet with the parents and children (if old enough) to gather information about family dynamics. The child specialist allows the child to have a voice in the process, educating and giving feedback to the parents in a way that will allow them to make thoughtful long-term parenting choices.

The child specialist will meet with both parents, usually together, and then meet with each child. Feedback to the parents is generally given in the presence of the coaches in order to be better received and processed. That information is used to help formulate a “parenting plan,” which outlines how the parents will share responsibilities for their kids, including decision-making, placement, expenses, transportation, and the like.

The child specialist does not actually make child-rearing recommendations, but is more educator and middle-man, assisting each parent to see how their own behavior, good or bad, has an impact on the child. That information can be quite powerful in motivating parents to make changes in their own behavior for the betterment of the family long-term.

Collaborative divorce cases also involve the participation of a financial specialist, another neutral. The financial specialist wears many hats or few, depending on the case. Jobs include: assisting the parties in creating actual or projected budgets, setting financial goals, educating an otherwise ignorant spouse about managing money, running child/family support scenario based upon a variety of assumptions, educating the team about tax implications, advising couples about retirements strategies or options for dividing retirement accounts, valuing assets, and generating options to divide assets and/or debts. Parties meet with the specialist alone or together, and then with counsel.

Commitment to Process

From the outset, each team member commits to a long list of principles and guidelines, which sets forth the honest and dignified manner in which the process is to be conducted, to achieve an outcome of mutual best interests. There is both the collaborative process, and the collaborative purpose. They are distinct, but go hand in hand.

As for the process: Principles of full disclosure and fair play are the underpinnings. All team members are expected to cooperate cordially and promptly, sharing responsibility and accountability. Game-playing, showmanship, posturing, and advantage-taking are not tolerated.

Notes are taken at every meeting and exchanged so each participant knows what happened, what homework was assigned, what the agenda is for the next meeting, when the next meeting is, and who is responsible for accomplishing what work by when.

Respectful communication, honest disclosure, and willingness to do the work, are all part of the process.

As for the purpose: Some practitioners believe the process alone, a more respectful one than traditional litigation, is worth participating in simply because of its low conflict style and the use of experts.

I believe collaborative has a deeper purpose, a core commitment, which gives it a more significant meaning and justifies the use of the weighty formal disqualification agreement that all participants must sign if they are to enter into the process. That is, to commit to collaborative process is to commit to the goal of reaching an outcome that will achieve the best results for each party under all the circumstances, whatever compromise that might require. That commitment is so big, and so deep, that to breach it, requires the parties to retain new counsel in a different proceeding (generally litigation).

No other process requires such a commitment. In collaborative, you really have to “put your money where your mouth is.”

If you are committed to resolving your family law case in a respectful and low-conflict manner, with the end goal of reaching a resolution that will be as beneficial as it can be for all members of the family considering all the circumstances, then collaborative process might be something for you to consider.

Karyn Gimbel Youso is a family law attorney at Jacobson & Ratzel in Brookfield. She can be reached via e-mail at [email protected].