Does My Case Qualify?
Mary Ann and Jennifer review what cases qualify for Collaborative Law.
MARY ANN HESS: I’m Mary Ann Hess and I’m the managing member of Folks Hess Kass.
JENNIFER MOSHIER: I’m Jennifer Moshier. I’m the founder of Peaceful Family Law.
MARY ANN HESS: So Jennifer, have you found that there are cases that you don’t believe are appropriate to pursue collaborative law?
JENNIFER MOSHIER: I have found that there are some personality types and some specific situations that, historically, I’ve understood were really precluded from the process. One would be someone who is really focused on a specific agenda and there’s no movement from that agenda. Another would be a person who has a serious personality disorder such that they’re not willing or able to participate in good faith. And “in good faith” can mean a number of things, but negotiate in good faith, fully disclose, promptly disclose without any gamesmanship. Those are the tenets, the cornerstones of the collaborative process.
And something that I’ve always understood was precluding the collaborative law process in a family situation was serious domestic violence. But we were talking before we came on camera, and you were saying that you’ve never heard that. And I wanted to hear your information on that. That’s really interesting.
MARY ANN HESS: Well, you raised a couple of points. So the first point regarding the agenda or the willingness to disclose, we address that upfront with both clients when we talk about entering into the collaborative commitment agreement, which it says in no uncertain terms that we are negotiate in good faith and we’re going to make all financial and all disclosure in the case. It’s going to be voluntarily provided and we’re not going to have to go through the discovery process.
So we have that conversation upfront. Now, regarding your comments on domestic violence, that’s a hard one. And people that are victims of domestic violence – I think we can all agree that a court system or a litigated model doesn’t provide them a support system, okay?
JENNIFER MOSHIER: Yes, absolutely.
MARY ANN HESS: So in a collaborative case, if we have someone who has been the victim of domestic violence, the support system can be provided. One way the support system is provided though is regarding disclosure. Financial and just information about their family – it is disclosed so that we can not level the playing field but bring comfort that the information you need to make a good decision is there.
JENNIFER MOSHIER: We can bring in the out-spouse and bring out the in-spouse, and so everyone’s on a level playing field.
MARY ANN HESS: Yes. And we can also deal with communications between the parents and the parties. For instance, if there’s been domestic violence, it doesn’t mean that they’re not going to co-parent.
JENNIFER MOSHIER: Absolutely.
MARY ANN HESS: And we need to address those issues head-on in the collaborative process.
After we address that, yeah, you’re right; it may not be appropriate for a collaborative law case. But I would think that we shouldn’t immediately preclude the people that need the help the most.
JENNIFER MOSHIER: I would agree with you. And I think by process of elimination or deduction in this conversation, my mind is kind of running. I’m going, “I feel like about 80% to 85% of the cases I have would be appropriate for a collaborative process.”
MARY ANN HESS: And I think that would actually be even a little low for my practice.
JENNIFER MOSHIER: Really? Okay.
MARY ANN HESS: Yes. I think that in disputes involving families, businesses, parenting, division of assets —
JENNIFER MOSHIER: Probate, guardianships. Oh, wow.
MARY ANN HESS: — probate, guardianships could all benefit from the collaborative process.
JENNIFER MOSHIER: Absolutely. It’s because you have this long-term interest with these high stakes that you have to keep cooperating and you can’t divide it.
MARY ANN HESS: Absolutely. And when we’re talking about relaunching after a divorce or after whatever their agreement is, these issues may never go away.
JENNIFER MOSHIER: Absolutely.
MARY ANN HESS: So they need that roadmap that they’ve agreed to to move forward.
JENNIFER MOSHIER: And continued support. You get continued legal advice for what I often find is a fraction of the cost of typical litigation, because the inherent risks of, “Well, could I make a mistake as an attorney?” No I really can’t because I’ve got – there aren’t mistakes in collaborative law. I mean, we correct those. We take care of those immediately. And so as a result, you just have such a lower risk for the lawyers and we pass that on. So, so many cases are appropriate. It’s amazing.
MARY ANN HESS: I agree.