Collaborative Divorce: A Process Option Whose Time Has Come

New York Law Journal

March 20, 2017 Monday

Copyright 2017 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited

Section: ALTERNATIVE DISPUTE RESOLUTION; Pg. S2; Vol. 257; No. 52

Byline: KIM CIESINSKI

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The legal system, by its very nature, is designed to produce a winner and a loser. In the context of divorce litigation, the winner is defined as the party who walks away with "the most"-most money, most widgets and most time with the children. However, this win/lose paradigm is an untenable fit in divorce, especially where there are children involved. When there is a perceived winner and loser, the entire family suffers emotionally and financially. The perceived loser can often experience anger and resentment which decreases the likelihood of compliance with court orders, and increases the incidence of post-judgement litigation. Fortunately, other solutions are taking hold. Mediation is increasingly prevalent, and now, collaborative practice is achieving heightened interest by providing another alternative to litigation with significant benefits to both attorneys and their clients.

A growing segment of the unhappily married population is reluctant to subject themselves to lawyers and "the system." A palpable fear of being lost in the narrative of your own life, as told and determined by strangers, has couples weighing the destructive forces of the legal system against the pain of remaining in their unhappy and oftentimes unhealthy marriages. While litigation has its place, attorneys, litigants and members of the judiciary alike, routinely bemoan the shortcomings of this system. Most participants agree there is a glaring need for a better way. As a result, mediation and collaborative practice are experiencing increased selection by divorcing couples and attorneys.

Like many other societal issues, the subjective circumstances of divorce matters exist on a spectrum with outliers residing on either end. On one end are the cases involving high functioning, emotionally sound individuals capable of reaching mutually beneficial resolutions independent of any formal legal proceedings. It is in these narrow cases that mediation serves as a cost effective, expedient and often highly successful process option. On the other end of the spectrum are the highly litigious, often emotionally unstable and psychologically impaired people. These litigants are motivated primarily by hatred and a hunger for vengeance. More often than not, they are incapable of reaching an agreement on even the most rudimentary issues. For these individuals, a judicial finding is the only appropriate resolution of issues.

In the middle lie the vast majority of cases possessing varying degrees of complexity and psychological functioning of the parties. It is in these cases that collaborative practice can provide a better resolution and assist in the creation of a successful and healthy bi-nuclear family. The collaborative process is a relatively young option in family law. This non-litigious option allows divorcing couples to restructure their families and define their future relationship in a positive manner that not only benefits the family, but ultimately, society as a whole.

Parties engaging in the collaborative process agree not to litigate by executing a participation agreement. Neither party waives their right to litigate, but should either party do so the attorneys are disqualified from further representation and the collaborative process ends. By taking litigation and the threat thereof off the table, the parties' interests are aligned at the outset.

Unlike in mediation, both parties in collaborative practice are represented by counsel. In addition, the collaborative process incorporates a "team" of experts to provide specialized assistance to the family.

There are many advantages to collaborative law. These include the following:

Client-Driven Negotiations

Collaborative practice shifts the focus from attorney-driven negotiations to client-driven negotiations. With the counsel and assistance from attorneys, the parties are in control of how their parental and financial relationship will be restructured in a completely private setting. Attorneys acting within the collaborative paradigm support and facilitate "interestbased" bargaining between the parties. This approach encourages a focus on the needs of the children and looks to expand the "financial pie" so that individual loss is minimized and mutual gain is maximized. Logically, parties who are active participants in the decisionmaking process regarding how to restructure their financial and parenting relationships are far more likely to satisfy their obligations than are those who have had a judicial determination of how to restructure imposed upon them. Clients are also more satisfied with the results, which is beneficial to the attorney's business bottom-line.

Privacy

Another key benefit of the collaborative process is the preservation of privacy, which is often paramount in the mind of privately held business owners. In litigated divorce cases involving closely held businesses, a forensic valuation of the business is typically performed by a professional assigned by the court to act in the capacity of a "neutral" expert. Quite often neither party will be satisfied with the results of the neutral's report and one or both may opt to hire independent experts in the hope of receiving a more favorable result. Not only is the cost of the valuation process and ensuing trial often financially devastating to the parties, but the complete invasion of privacy may lead to the discovery of issues that render the parties vulnerable to legal liability on ancillary issues. In the collaborative process, all financial discovery provided and information gathered in the valuation of a business remains private, affording business owners the obvious benefit of removing the angst of potential liability concerns.

Emotional Guidance

In every divorce there are naturally occurring feelings of fear, anger, sadness, and vengeance. Our legal system has limited tools to deal with these emotions and as a result they are ignored, stifled or worse yet, punished, which only serves to inflame them. More often than not it is the parties' inability to properly process their strong emotions that serves to impede the progress of the case. The collaborative process provides a safe and supportive environment where the feelings and behaviors naturally attendant to the process of divorce are expected, considered a normal part of the process and handled appropriately by professionals specifically trained to do so. With the assistance of a mental health professional acting in the role of a "coach," collaborative practice allows for the normalization of the parties' emotions and empowers them to move through the stages of grief in a satisfying manner that fosters healing and closure. The services provided by a mental health professional are invaluable when it comes to crafting custodial and parental access schedules. When emotions are given their due, new avenues of communication open up and a positive agreement built on respect and mutual satisfaction can ensue.

Financial Expertise

In many divorce matters, the financial picture is complex and the services of a Certified Financial Planner are required. In these instances, the appropriate collaboratively trained financial expert comes to the table and offers assistance in formulating new budgets and navigating towards financially sound solutions, thereby serving the interests of both parties. Overall, in the collaborative process, clients have at their disposal a highly qualified interdisciplinary team to help them think outside of the box and find creative solutions that serve to restructure their family in the least emotionally damaging and most cost efficient manner possible.

The collaborative process offers an alternative answer to a growing dissatisfaction experienced by both the public and the professionals who toil in this area of the law. Through use of the collaborative process, the divorce professional and the client experience is impacted in a positive manner across the board. Not only is there a sense of selfefficacy, as well as the preservation of dignity, respect and privacy among divorcing couples, but there is also a re-awakening of the practitioner's positive intentions to be of service and to help people through one of life's most painful experiences. By encouraging the selection of the collaborative process much pressure will be taken off of the system's limited resources and judges may focus their energies on performing their intended function in those cases that require a proclamation of a winner and a loser. Proper allocation of cases into the three existing process options of litigation, mediation and collaborative practice is the starting point for resolving many of the problems that plague our judicial system and undermine society's foundation of family as they relate to the issue of divorce.

KIM CIESINSKI is a partner at Schwartz & Ciesinski in Garden City, focusing on collaborative divorce and mediation.

Classification

Language: ENGLISH

Publication-Type: Newspaper

Subject: LITIGATION (91%); DIVORCE & DISSOLUTION (90%); FAMILY LAW (89%); CHILDREN (89%); FAMILY (89%); MARRIAGE (78%); SOCIETAL ISSUES (78%); LAWYERS (78%); ALTERNATIVE DISPUTE RESOLUTION (77%); LAW COURTS & TRIBUNALS (75%); AGREEMENTS (75%)

Industry: LAWYERS (78%)

Load-Date: March 20, 2017