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What is Collaborative Law?

In this video, Jennifer and Monica discuss what Collaborative Law is and how this newer form of family, divorce or separation resolution works.


JENNIFER MOSHIER: I’m Jennifer Moshier. I’m the founder of Peaceful Family Law.

MONICA DONALDSON STEWART: I’m Monica Donaldson Stewart and I’m the managing attorney at Donaldson Stewart, PC.
Collaborative divorce is an opportunity for spouses who want to seek a peaceful out-of-court solution as they make a transition into their new lives.

JENNIFER MOSHIER: You’ve probably had a friend or family member go through a very difficult or a conflict-ridden divorce. It probably involved a courtroom, a judge, and a difficult opposing attorney on the other side that your friend or family member did not like. A collaborative process is really unique in that you are actually afforded the opportunity to avoid a courtroom, avoid a judge, and avoid that nasty opposing counsel on the other side.
What you instead commit to is: We’re going to make ourselves the own judge and jury of our case; we’re going to actually appoint ourselves the decision-makers; we’re going to have a team of professionals come in and help us. And at the ground floor of that team of professionals are attorneys and sometimes financial specialists; and in some cases we also have a communication specialist, someone who is trained in collaborative process who can help you break through those difficult communication barriers and high-conflict situations.

MONICA DONALDSON STEWART: Another contrast between the collaborative process and the conventional process is the cost. In many conventional divorces, the legal fees rise quite a bit the closer you get toward trial and court appearances. And at the end of the day, you’re stuck with the result that the judge gives you. On the other hand, in a collaborative case, the costs are often much less because the time is invested in reaching resolutions to the issues as opposed to having to prepare documents for filing with the court, having to prepare to litigate, or even in the gathering and exchanging of documents during the process.

JENNIFER MOSHIER: In many of my collaborative cases – and I do litigate, so I have a basis for comparison. In many of my collaborative cases, I find that the fees that my clients have to pay on average are only a fraction of what my clients would have to pay in a typical litigation case. That’s the case where you go to court and you have a judge and you have this big chapter of your case called discovery. You eliminate that discovery in collaborative law, and so typically it can be expected that the elimination of discovery will eliminate a lot of the costs and fees.
I find that when a client comes to me and says, “I’m interested in a collaborative process,” the most important thing that they can do is, first of all, establish a basis of trust with the other side, the other person that they’re divorcing from; and secondly, the most important thing that both of them can do is locate an attorney who they know will use the collaborative process.
Wouldn’t you agree, Monica?

MONICA DONALDSON STEWART: I would agree with that, and I would add that part of the collaborative process is that each of the participants is required to have their own attorney. This isn’t a process where one person can be represented and the other unrepresented, and it’s not a process where each of the participants can represent themselves. Having an attorney who is trained in the collaborative process will ultimately help all of the participants on the team to be able to achieve their objectives.

JENNIFER MOSHIER: So one important thing that people who are considering a divorce, facing a divorce can do is actually secure an attorney upfront. This would typically feel like, “Wow, they’re lawyering up? I’m lawyering up. We’re about to go to war.” And in fact, what you’re doing, if you’re looking for a collaborative attorney, is you’re actually retraining an attorney whose only purpose, their sole mission in helping you and the other side, is actually to help you find resolution.
One of the reasons that having an attorney for each of the people involved, each of the participants in the collaborative process – one of the reasons that having an attorney is so important is because that way both sides get the same information at the same time and nobody feels like they’re at a disadvantage. The playing field is totally level.

MONICA DONALDSON STEWART: Another aspect to consider is that under the rules, if an attorney is representing one of the participants for collaborative process, that attorney cannot later represent that client in court if for whatever reason the collaboration is not successful. In my experience, collaborative cases are successful and they do end in a full resolution of the case, but we can’t guarantee that.
And so one of the things that the clients need to understand upfront is that if for any reason the collaborative process does not achieve the outcome of a full settlement, the attorney they work with in their collaboration will not be representing them in litigation.

JENNIFER MOSHIER: And that is such an important component of this valuable process. I find that my clients who go through the collaborative process are – they feel almost transformed, is the report that I get from many of them, at the end of the case. And I mean, one thing you typically see in a collaborative case that you don’t see anywhere else is your client walking up and hugging the other side’s attorney, and it’s a wonderful process.
But one of the things that does trigger people to really invest and dig deep and stick with that process is the fact that if you do leave, you are not going to take your attorney with you to a courtroom and have them – they find out all this information about the other side, and then they go use it in court. That’s not possible.
So all the information and the hard work that you’ve developed and created in this valuable collaborative process stays there, so people often stay with it. In fact, there are – I don’t think – I know of one case in the history of collaborative law in Phoenix where – it wasn’t mine, but the case did fall apart. And I know of only one. That is so rare.

MONICA DONALDSON STEWART: And I would just add to that: I’ve never had a case fall out of collaboration prior to reaching a decree (ph 6:30).

JENNIFER MOSHIER: Me neither. I mean, it’s not for the faint of heart. I don’t want to give the sense that it’s all, as one of our fellow practitioners calls it, sunshine and lollypops; it’s not, absolutely not. In fact, a collaborative process is for high-conflict cases, it’s for high-conflict personalities even. But there is a unique skillset and a unique training of the professionals that’s designed to accommodate that. And a collaborative process is also for people who just simply say, “You know what? We’re not high conflict, but we need enough information about the law and our legal rights and obligations to make a decision about what we’re going to do here.” And I’ve never had a case fall out of collaborative process either. I’m very fortunate in that regard.
So one important component of collaborative process is that you, essentially, as a participant in a collaborative process, you get to avoid this big chunk of what is typically a conventional court case, which is called discovery. And discovery is often very expensive, it can be time-consuming, and it can be conflict-ridden. There can often be a number of motions filed back and forth.
And one thing that collaborative process offers to help people avoid that process but still gain the information is the use of experts. And Monica can share a little bit about what these experts can do for you if you’re engaged in a collaborative case.

MONICA DONALDSON STEWART: Right, thank you. When it comes to the gathering of the information in a collaborative case, the neutral financial professional is in a position to be able to work with each of the participants to gather whatever information is available to them, so that everybody on the team has access to the same information regardless of which of the spouses was the one more involved in maintaining the family’s finances. Although the information that’s exchanged during the discovery process in a conventional case is essentially mandatory information. The information is required to be exchanged, but for some reason that turns into one of the most weighted-down parts of a conventional case.
In a collaboration, one of the tenets we follow is transparency. And by having a neutral professional gather the information and disseminate it to the entire group, everybody is ensured that they will have access to the information and everybody has committed in writing that they will be transparent and will provide everything that’s been requested.
I usually find that in complicated financial cases, the use of the financial neutral is really the tipping point on how to get everybody on the same page. What are our assets, what are our obligations, and what are our budgets going to look like when the case is over? So rather than having conventional attorneys who are positioning the parties against each other in how they can get the upper hand, having a neutral professional do this is ensuring that what they’re doing is meeting their mutual objective.
One of the other professionals that we often included on a collaborative team is what we call a collaborative communication specialist, or a communication coach. These are trained professionals who are generally in the mental-health field, but whose role is not to provide therapy to the participants in the collaboration but rather to help them to find their voice and to feel comfortable speaking for themselves and to be able to —

JENNIFER MOSHIER: Level the playing field? That’s the word I would use to (inaudible 10:00).

MONICA DONALDSON STEWART: Yeah, I think that’s a great way to put it, because often there’s some kind of an imbalance between the participants where one of them has been the talker and the other one has been the listener, one of them has been the doer and one of them has been the watcher, or one of them has deferred to the other. And that by having someone who is helping to facilitate the communication, whether it’s a separate specialist for each of the participants or whether they work together with the same person, it often helps it raise the discussion from not just attorneys talking across the table at each other, but actually having the spouses able to speak up and speak for what it is that they’re – what they’re trying to achieve.

JENNIFER MOSHIER: I do find that bringing in a communication coach, a collaborative communication coach as we call them, can be so resourceful for people to even that playing field, level their communication, and essentially, take one spouse out of being sort of the out spouse as far as feeling like they can voice their true feelings, their concerns about the process. And it sort of puts both people in a position that they’re level, that they feel like things are fair. And it also can speed up the case quite a bit.

MONICA DONALDSON STEWART: I would agree with that, because not only are they helping to work with – helping someone to say what they want to say, but they also help them learn how to listen and receive information from their spouse.
So for example, if we know that there’s sort of a hot-button issue and we’re just waiting for it to come up, the communication specialist can work with the spouse ahead of time to say, “Okay, when you hear this in our meeting, how are you going to react? Can you listen without immediately reacting to it? And just having somebody there who helps to keep things level, helps to keep things from having the peaks and valleys I think really moves along the tone of the meetings and helps prepare each of the participants for what to expect in each of the meetings ahead of time.

JENNIFER MOSHIER: Yeah. I tell all of my clients the people who want a day in court – it just – that is never a reality for people. Collaborative process is the closest I’ve ever found that any of my clients feel like they got a day in court. And having that communication coach, that specialist who’s able to help facilitate everyone’s voice being heard really helps to bring that home for people, it really helps to give people the sense of, “You know what? Maybe the marriage didn’t work out, maybe the relationship didn’t work out, but I at least know. Now I have that chapter of my life closed, I have those answers I wanted.”

MONICA DONALDSON STEWART: Right. In cases involving children, one of the other participants on a team can be a child specialist. This is somebody who is meant to be the child’s voice in the process, but they’re neutral as to the parents. They’re not on anybody’s side. They meet with the children to find out what’s important to them, to find out what it is those children would like the parents to know as the children go through the process.

JENNIFER MOSHIER: Absolutely.

MONICA DONALDSON STEWART: So it’s not that the children get to make the decision, but they get to have a voice, which is something that doesn’t happen in a conventional case.

JENNIFER MOSHIER: Yeah. I’ve read somewhere that in the United States and South Sudan are the two countries that do not have laws that allow children to have a voice in legal proceedings that affect them. And a collaborative process actually seeks to circumvent that lack of legal protection for young children by essentially saying this child specialist does allow a child to have a voice. They don’t get to have the determining voice, but they get to have a voice, which is important.

MONICA DONALDSON STEWART: To learn more about the collaborative process from attorneys such as Jennifer or myself or other collaboratively minded professionals, please consider visiting bestlegalchoices.com.