In this video, Monica, Steve and Jennifer discuss some of the key benefits to using Collaborative Law.
MONICA DONALDSON STEWART: I’m Monica Donaldson Stewart and I’m the managing attorney at Donaldson Stewart, PC in Chandler, Arizona.
STEVEN KEIST: Hi, I’m Steve Keist. I’m the senior partner of a five-lawyer firm in Glendale, Arizona.
JENNIFER MOSHIER: I’m Jennifer Moshier. I’m the founder of Peaceful Family Law. We are two lawyers, one paralegal, in Scottsdale, Arizona.
Collaborative law is an out-of-court option for people who are considering a divorce, legal separation, or any other family-involvement type of case. If you’ve got a long-term, shared, high-stakes interest in something that you can’t divide like children, a pet, a house, a business, courts typically don’t handle these interests in the way that the parties themselves may want to see the interest divided. So this is a way to be creative. It’s a uniform approach, but it’s a way to be creative with your specific case in a way that a judge may not have the liberty to be.
MONICA DONALDSON STEWART: In a collaborative-law case, you have the opportunity to work together to mutually select a team of experts who can assist with the resolution of the different kinds of interests and issues that you may have. Most people come into their divorce expecting their attorney to handle everything for them, but we’re attorneys; we’re not mental-health experts, we’re not financial planners.
What we can do in a collaborative case is we can bring in those particular experts who can help with the part of your situation that you may need the most. If you need assistance communicating with your soon-to-be former spouse, we can bring in a communication specialist who can assist with that. If you need assistance understanding or sharing the financial information so that everybody understands what’s on the table, a neutral financial specialist is the one that we would speak with. And if there are children in your case, a child specialist can also help to bring the child’s voice into the room.
STEVEN KEIST: After a 40-year career, including thousands of court appearances, I’m convinced that litigating matters in the court system is not the most efficient way to deal with them, especially when you’re talking about the most important relationships in your life – that would be with your spouse and your children. The collaborative-law process allows you to resolve those issues peacefully and amicably outside of the court system.
MONICA DONALDSON STEWART: I know I had a case recently where I was so glad that this ended up being a collaborative case, because had it gone through traditional, conventional litigation, it would have been a disaster. In this particular case, one of the spouses had absolutely no trust in the other and every single thing the other person said was completely suspect. And I represented the spouse who didn’t have the trust issue, so I kind of felt like, “What can I do to help this person really understand we’re putting everything on the table?”
Well, because this was a collaborative case, part of the team included a neutral financial specialist. And one of the great things about this process is that the spouses basically commit to complete transparency throughout the entire proceedings. So by knowing that we had a neutral person who was in charge of gathering all of this information and verifying all of the information, we were basically able to avoid the discovery process, which I’m sure you both know can be very costly, take a lot of time, and it can be very contentious.
So by using a neutral financial specialist to facilitate the exchange of information, these spouses were able to save a lot of time and a lot of money, and ultimately, ensure that all of their information had been disseminated.
STEVEN KEIST: One of the biggest advantages of the collaborative process is the savings, both in time and potentially, hopefully, money. You can avoid all of the expense of discovery, which is time-consuming and expensive, as Monica said, in a collaborative case, and hopefully, reach the amicable resolution quickly without a lot of extra spent by the attorneys and the other professionals, as well as the parties, taking time out of their regular lives to deal with these issues.
And for example, Jennifer and I had a case with a couple that had children and significant financial issues because the husband owned his own business. We were able to lay out the groundwork at an initial meeting, get a financial professional involved, and in only two meetings we were able to help this couple resolve essentially all of their issues, and happily, they actually reconciled, which doesn’t always happen but it was a great result.
So there’s a case where if that case had been filed and gone into the court system and litigation, my prediction is that it would have become a drawn-out, dramatic, expensive mess and probably reached a much different result for that couple.
JENNIFER MOSHIER: One of the wonderful things about working with other collaborative attorneys is, as Steve and Monica have both mentioned, is the savings involved for our clients. When you work on a collaborative case to begin with, I find that my clients can generally expect a reduction in the fees that they would otherwise pay to litigate, because you are cutting out an enormous chunk of the work for your lawyer, and that’s called discovery. That discovery process is not eliminated. It’s just restructured in a way that all of the information is transparently available to both people and you’re able to have the creative license to come up with something that applies to your life in a unique and personal way that will fit you and your solution.
And when Steve and I had the opportunity to work together on our case, we were able to do exactly that for that couple. We were able to bypass that discovery, and we actually agreed to go to collaborative law on the courthouse steps. So we were literally outside of a courtroom scheduled for a hearing, and we walked up to each other and said, “Hey.” And it went from there and it snowballed, rolled down hill.
And it was a wonderful experience for us professionally to be able to serve these clients in a way that, again, it’s such a concierge-level service. They don’t have to go to a courtroom again, they don’t have to go through the grind of wondering, “What will my expenses be?” These people get to have a very close relationship, working relationship with their attorneys and with each other.
MONICA DONALDSON STEWART: Although the collaborative process does allow the spouses and their team to be extremely creative in the way they craft the outcome of their case, this is still a rules-based process. Rule 67.1 of the Arizona Rules of Family Law Procedure will control that process. And one of the rules that potential participants in a collaborative case need to know is that although they must each have their own separate attorneys in the process, if for whatever reason the collaboration fails and either of the spouses seeks some kind of an in-court resolution of their issues, both of the attorneys and everybody else on their team must withdraw and are not available for that litigation.
JENNIFER MOSHIER: One thing that I’m frequently asked is, “What’s the difference between mediation and collaboration?” And there’s an enormous difference because in mediation you can check into the mediation process, but you can also check out of it. Either party to the mediation can say, “You know what? This isn’t working for me, I’m not happy with the settlement that I’m going to reach or that I think is on the horizon. I’m going to check back out and go to court.” To Monica’s point, one thing that’s very unique about collaborative process is you – it’s like the Hotel California. You can check in anytime you want, you can be in the middle of your court case and say, “Hey, we’re going to go to collaborative process” like we did in our case, Steve.
But what we find is that, like Monica said, people never want to leave a collaborative process, but it’s important that they know that that’s the reason it’s got so much value, is because you’re going to check in to the collaborative process and you can’t leave with your lawyer. This invests you to stay to the very end, if at all possible, and try to resolve your case in a way that everyone is satisfied. And I find that that investment has resulted in, at least for me, never having a failed collaborative process so far.
I believe we all know of one case – one in the entire community – that has not come to completion through collaborative process, so that’s pretty amazing.
STEVEN KEIST: I have had many other lawyers tell me that they believe collaborative law is just like mediation. And mediation is often used in litigation, including family law cases, as is ADR, or what we call alternative dispute resolution. Alternative dispute resolution is used by the court system to try to help people resolve their conflict. The difference between collaborative law and either mediation or ADR, is that those processes happen well down the road after the case has been in litigation for quite a while. Consequently, you’ve already incurred substantial time and cost in the process.
Secondly, ADR – and I know this from firsthand experience because I’ve been a judge pro-tem for the last 15 years for the superior court – is essentially forced mediation. The job of the conference officer is to make people settle if they can. And usually, what happens is, and we use this phrase in the business, “A good settlement is when both people are essentially unhappy.”
In collaborative law, we hope most cases the settlement is good when both people are essentially happy, because they’ve helped come to the resolution and it’s come about over a period of time working together instead of a three-hour process where you’re forced to reach a settlement and it just happens because you want to get the case over with at that point.
JENNIFER MOSHIER: That’s true.