by Nanci A . Smith , Esq .
Divorce With Dignity Using the Collaborative Law Approach to Achieve Procedural , Substantive and Psychological Satisfaction
One day in South Royalton seemingly a million years ago , a Vermont Law School colleague quipped : “ Practicing criminal law is working with the worst of humanity , while practicing family law is working with humanity at its worst .” Hmm , I thought . Is that true ? What does humanity at its worst really look like ?
After twenty-four years of practicing family law , I finally understand . On a daily basis , I work with clients who are vulnerable and confused ( o . k ., a few rare ones may be feeling quite excited to finally talk with a divorce lawyer , but the vast majority are not ). Most often , my clients are overwhelmed with feelings such as fear , sadness , shame , guilt , anger , and grief . Their world is upside down . It regularly occurs to me that perhaps the early stage of a divorce is not the best time to ask clients to make major decisions about the most important things in their lives : their children and their finances . I tell clients that divorce is like a death in the family except no one is bringing them food . Clients need strong guidance on what to do and how to behave . By the end of a divorce , I want my clients to accept reality , and experience a sense of personal freedom . I like helping clients through this transition . This is why I keep practicing family law . It also explains my enthusiasm for collaborative law or collaborative divorce practice .
Nearly fifteen years ago I read Pauline Tesler ’ s seminal book and thought , what a sensible approach to divorce . 1 In the past twenty-five years , since collaborative law was introduced to the masses , the process has changed and expanded significantly and includes a multidisciplinary approach . The Uniform Law Commission affirms ,
It is being practiced in all American jurisdictions . The ABA Ethics Committee and at least eight state bar ethics committees have expressly approved the use of Collaborative Law as a form of limited-scope representation . Collaborative Law is a rapidly growing form of alternative dispute resolution for one simple reason clients want it . And , it is time to regularize the practice and provide baseline rules and expectations among those involved in its use . 2
Slowly but surely , collaborative divorce practice is emerging in Vermont with some dedicated “ early adaptors ,” and “ risk takers .” 3 The collaborative model is a non-adversarial dispute resolution process that empowers clients to make informed , educated decisions that are in their best interests . Each client has a collaboratively trained lawyer to provide legal advice and counsel throughout the process . Thus , each has an advocate on his or her side , which abates any concern about the client being “ sold down the river ” or otherwise being taken advantage of , an issue that often arises in mediation . Together , and in accordance with established protocols , clients review and sign a participation agreement that outlines the mutual expectations and responsibilities , including good faith , honesty , transparency , integrity , and respect so clients can move deliberately through their divorce process , at their own pace , in a supportive and safe environment .
Included in the participation agreement is the “ disqualification clause .” The lawyers will not represent their respective clients in subsequent litigation if the collaborative process fails to produce an agreement . 4 This is informed consent . We intentionally limit the scope of our representation , and we do not threaten or go to court . Without this commitment , we would end up bargaining in the shadow of litigation .
The disqualification clause is a frequently cited reason why “ cooperative lawyers ” will not engage in a formal collaborative law process . Yet it is the glue that binds us together . We ask our clients to let down their guard and share their most vulnerable and honest selves in a safe environment so that we can get them divorced without causing more harm , or adding fuel to their fire . If the lawyers retained the option of taking these same clients into an adversarial court process because we failed to settle their case , then we effectively undermine all of the principles we agreed to at the start of the process . A litigation escape latch will inevitably lead a lawyer to hold back something to be used “ later on ” or “ just in case .” Worse , lawyers may be tempted to use sensitive information learned in the process against the other client and lawyer in order to “ score a victory ” in court . It is the sanctity and privacy of the process that allows for authentic communication and feedback . By keeping a back door open for litigation , lawyers undermine the trust and confidence we strive to establish . The disqualification clause actually allows the lawyer ’ s mind to shift into the collaborative paradigm .
This model , at its core , recognizes that people who are divorcing are suffering , and need help , on many levels : legal , financial , emotional , spiritual , physical , and psychological . The lawyers gather a “ team ,” anchored by an experienced mental health professional with training in family systems work , divorce and collaborative practice . The mental health coach brings a deeper understanding of the couple ’ s dynamic so that it is out in the open , the lawyers understand it in advance , and it doesn ’ t negatively impact the negotiation . 5 Sometimes we engage a financial neutral as it is also a common experience that one spouse needs more help understanding the marital estate and his or her own future financial needs . We may call upon other allied professionals , such as appraisers , realtors , or child specialists .
Working together , we set agendas in advance of the meetings . During our meetings , which usually last two hours , we sit at a table together and work through the issues of importance to the clients on a timeline that works for them . The professionals model two of the most lacking concepts in a divorcing couple ’ s relationship : trust and accountability . We follow up meetings with minutes that remind us all of what was discussed and agreed to , and what we have to do next .
The professionals communicate with each other about potential problems a client may be experiencing that may impact our ability to negotiate . The lawyers voluntarily exchange discovery and hire neutral and respected experts when needed . We teach ourselves and our clients how to actively listen and how to identify and articulate a need and a goal , as opposed to simply stating a position and sticking to it . The team creates a safe place to have difficult conversations . The lawyers file uncontested divorces and walk away feeling good about the settlement and ourselves . We have faith that our clients are going to succeed in their lives , as evidenced by the fact that post-judgment issues rarely arise .
Practicing collaborative law doesn ’ t feel that risky . It is the same substantive work we already do , just applied in a completely
24 THE VERMONT BAR JOURNAL • SPRING 2016 www . vtbar . org