Kansas Family and Divorce Lawyer

What is the difference between mediation and collaborative law?

With all the talk going on right now about collaborative law and mediation, it was great to see my fellow family law blogger, Oklahoma Family Law Blog publish his recent post on the topic. There is a clear difference between the two methods. And this post will help explain the two.

In mediation, there is one 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.

Collaborative Law was designed to deal more effectively with all these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.

Source: DivorceNet.com.

Source for Post: Oklahoma Family Law Blog.

Collaborative Law: Divorce without War

Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to 'trouble shoot and problem solve' rather than to fight and win.

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

1. Disclosure of Documents.
   Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
2. Respect.
   Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
3. Insulating Children.
   As part of the process all participants agree to insulate the children from the proceeding and to act ins such a way as to minimize the impact of the divorce on them.
4. Sharing Experts.
   The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (eg. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
5. Win-Win Solutions.
   The primary goal of the process is to work toward an amicable solution and to create a 'win-win' situation for all.
6. No Court.
   Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value. Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture. Instead, they are reacting to psychological pains that they experiencing These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

A team of professionals is assembled to help the parties understand and resolve their disputes i many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.

Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. this often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.

Most Cases Settle. The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom? Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.

SOURCE: DivorceSource

How Does the Collaborative Process Work?

As in traditional family law/divorce cases, your lawyer supports only you and your spouse's lawyer supports only your spouse. In the collaborative process, both lawyers are trained to consider the other parties’ perspective in order to help both of you reach agreements that accomplish the goals of both parties and preserve the welfare of the entire family.

Collaborative practitioners work as part of an inter-disciplinary network of professionals to provide expertise and advice on issues relevant to the ultimate settlement of the case.

Before the process begins, the lawyers and clients formally contract to work together to resolve the issues of the case. Both lawyers contract not to take the case to court. They sign a contract titled ‘Participation Agreement’. In traditional litigation the divorce process begins with the filing of a lawsuit. The collaborative process begins with the signing of the Participation Agreement.

The parties also sign a document ‘Statement of Understanding Among Team Members’. This document contains the commitment of the professionals and the parties to work together as a team with the common goal of resolution of all issues in a way that best meets the needs of all involved.

Why Should I Choose the Collaborative Process Instead of Traditional Litigation?

Lower Cost
The collaborative process is generally less costly and time-consuming than litigation.

Client Involvement
The client is a vital part of the settlement team and have a greater sense of involvement in the decision making which affects their lives.

Supportive Approach
Each client is supported by their lawyer and coach in a manner that still allows the attorneys to work collaboratively with one another in resolving issues.

Less Stress
The process is much less fear and anxiety producing than utilizing Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of 'going to Court'.

Win-Win Climate
The Collaborative process creates a positive climate that produces a more satisfactory outcome for both parties. The possibility actually exists for participants to create a climate that facilitates 'win-win' settlements.

Speed
The speed of the collaborative process is governed by the parties rather than court calendars.

Creativity
The collaborative process encourages creative solutions in resolving issues.

Clients in Charge
The non-adversarial nature of the collaborative process shifts decision making into the hands of the clients where it belongs, rather than into the hands of a third party (the court).

SOURCE: Collaborative Law Institute of Georgia

Source for Post: Georgia Family Law Blog.

Collaborative Divorce - A Team Approach to Divorce

The interest and exposure of the collaborative divorce process is growing. Recently, the ABA Young Lawyers Division had an article called Collaborative Divorce: A Team Approach to Divorce. In my opinion, drawing interest from the young lawyers of the ABA is just what the collaborative divorce process needs. If we can get those new to the family law practice on board with collaborative law, we stand a better chance of bringing this service to more areas of the country.

While the article may be directed to young lawyers, it does provide some basic information about the "nuts and bolts" of the process. For more information on Collaborative Divorce, visit the International Academy of Collaborative Professionals' website.

Source for Post: ABA Young Lawyers Division and The Family Law News Blog.

The Collaborative way to Divorce

I have just read Stuart G. Webb's great new book, "The Collaborative way to Divorce." This is a wonderful source for anyone interested in the collaborative concept.

This is from the front flap to the book:

The Collaborative process is beneficial in that it:

• Keeps your children out of the controversy, and the controversy to a minimum

• Gives you greater control over the outcome of your divorce

• Is generally less expensive and quicker than litigation

• Helps maintain a sense of integrity and respect between you and your partner

What you may find most helpful about this book is the comparison of a "regular" divorce and the collaborative way to a divorce.

Divorce and a "Problem solving Court"

Johnson County, Kansas now has what is called a problem-solving court, sometimes referred to as "therapeutic jurisprudence." The idea behind the courts is to hook up people with classes, counseling or treatment so they can solve their own problems. In other words, help them resolve their conflicts.

"Johnson County District Judge Allen Slater said research shows that children can do very well when their divorcing parents cooperate in raising them. But children stuck in high-conflict divorces are suffering, Slater said."

The program was started because the judges saw what conflicting parents were doing to their children. If a parent balks about participating in a particular service, a judge can limit his or her visitation rights or delay granting the divorce.

Johnson County judges hope the “problem-solving court” they implemented Jan. 1 will teach parents how to put their animosity aside for the good of their children.

Gary Kretchmer, director of domestic relations division, Johnson County Court Services provided the following Advice for Parents:

Worst things a divorcing parent can do to a child:

■ Criticize the other parent.

■ Make the child feel guilty for loving the other parent.

■ Use the child to spy on the other parent.

■ Ask the child to serve as a messenger to the other parent.

Best things a divorcing parent can do for a child:

■ Respect the other parent.

■ Use a cooperative rather than competitive spirit with the other parent.

■ Try to rebuild at least a level of trust.

■ Work on communicating well.

Source for Post: Kansas City Star

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Getting Divorced? You Have Options

Couples often find the preliminary stages of the divorce process overwhelming because of the many issues they need to consider. Among these are questions about support, asset division, and children. Reaching agreement on these issues is almost never easy, and couples are often besieged with advice from well meaning friends and family, and articles such as this. The reason why this process can be so bewildering is because each situation requires a unique solution. Save the simplest cases, there are no standard resolutions. Thus, the guidelines of family law are intentionally flexible and lacking in clear guidance and rules. In light of this, couples must first understand their choices when getting a divorce. These include litigation, mediation, and collaborative law. Each approach has its advantages and its advocates. It is up to each couple to try to figure out what process suits them best, rather than focusing on specific solutions.

Collaborative Divorce

The largest divorce firm on the East Coast, Rosen Law Firm provided a great outline of what the Collaborative Divorce process is.

“Collaborative divorce really gives people control over their destiny”, says Lee Rosen, president of Rosen Law Firm and divorce attorney for twenty years. “This approach encourages a more peaceful resolution to marital conflict where people maintain very amicable relationships throughout the process and the threat of court isn’t there”. Collaborative divorce is different from dispute resolution, mediation, or arbitration. When a collaborative divorce takes place a set of voluntary ground rules are agreed upon. The central idea is that the parties hire lawyers who agree in advance not to take the case to trial.

In a collaborative divorce procedure, if a case cannot be settled and the parties decide to litigate, both must hire new attorneys, as outlined by the collaborative divorce rules. Also, both parties’ lawyers must be trained in collaborative divorce law for the process to work. “We are so committed to this cooperative approach that we’ve not only trained every one of our attorneys in collaborative divorce law, we’ve also provided free training to attorneys in several other firms”, says Rosen.

Like mediation and arbitration, collaborative law attempts to maintain a civil relationship throughout the negotiation process, as well as after an agreement is reached. If either party becomes stuck on a particular issue, a mediator may be consulted to help with the collaborative process.

I do believe it is a concept that will work. However, I do not believe it will work in every divorce. Not because couples that divorce simply can not get along. In my opinion, I do not believe the average couple has the money to pay for the process. But, I do believe it certainly has a place in the divorce process. Since one of its goals is to maintain a civil relationship, I can see where the children of a divorce may benefit the most. If we can keep the divorcing parents from cutting each other up in court, perhaps we can help to maintain a better relationship between the parents.

I do plan to start getting training in the process as soon as I can. The problem, no matter what area you practice in or live in, there has to be at least two attorneys that practice Collaborative Law.

More to follow.

Collaborative Divorce out of Court

Here is an article in the Wichita Eagle about Collaborative divorces in Kansas.  Behind the push for this practice in Kansas is a group of 21 lawyers that formed the Central Kansas Collaborative Family Law Practice Group.  My only concern, and that which has been mentioned by Lee Borden  over at the Alabama Family Law Center, "its a solution well-suited for divorcing spouses with lots of money but doesn't tend to work as well for the vast majority of people who need to divorce."

Which is another reason why I feel that using the same approach which Lee uses in his practice which I have pointed out in prior post would be of great benefit to Kansas couples that are facing a divorce that is uncontested. 

Again, watch for details to come as to how I will be adding this to my own practice.