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'What Should We
Do?'...The Choices for Divorcing Families
By Paula H. Noe, Esquire
How about giving divorcing families (in crisis, as,
of course, most of them are) some choices, some ways to reach settlement with dignity and
respect? We can, you know...and we, as professionals, should.
Life is full of choices, and an important and even vital
one is the avenue by which the family reaches the Separation Agreement, the contract that
ends the marriage. In my family law practice, I consider myself morally and ethically and
legally obligated to the divorcing person(s) in front of me to let him or her or them (I
am merely dispensing information at this point and am not representing either party and am
painfully clear about this if the couple wants to come together to see me and get
educated) learn about their options at this critical moment in their lives. This is, after
all, their lifetime (and not mine) ahead of them, and they should each know what lies
ahead (as best we can predict anything) so that he or she makes a decision after, and only
after, full disclosure and with informed consent.
Thus, I make it a regular practice to meet with each
potential client for at least an hour before we make a joint decision to work together (or
not – I am also aware that my practice doesn't always fit with some potential
clients). I make sure the person in crisis understands the choices :
The litigation model in which the attorney
and the party work together to request that the court make the vital decisions (usually
because the parties just can't do it together, for one or many reasons). This time-tested
model is completely appropriate for some parties and for some attorneys. No one model fits
all, after all.
The mediation model in which the neutral
mediator guides the parties toward settlement, usually with the attorneys for the parties
on the fringe of the process. We are so fortunate to have so many skilled mediators in our
geographical area who can ably and successfully facilitate an Agreement between the
parties, with the individual attorneys guiding their clients and serving as 'consulting
attorneys', as needed. I refer clients to the Massachusetts Council on Family Mediation*
for more information and sincerely believe that educating the client is one of my primary
obligations.
The Collaborative Law (also known as
Collaborative Practice) model whereby each client hires a collaboratively-trained
attorney*. Then, in a series of 4 way meetings structured around an agenda and fair
dealings and transparent negotiations, the parties and their attorneys articulate the
goals of the divorcing parties and strive to reach the goals in order to create a
Separation Agreement. There are several keys, in my view, to a successful Collaborative
Law situation –
a. The most vital ingredient is for the
process to be guided by two collaboratively-trained attorneys*. Although many experienced
divorce (and business, too – this works in the civil arena also) attorneys can
articulate, "I have been negotiating collaboratively forever and already know how to
do it.", my experience is that without the training and belief in 'paradigm shift'
taught only at a Collaborative Practice training (offered in MA by the Massachusetts
Collaborative Law Council* several times a year ), the real collaborative process just
doesn't happen, and the clients do not receive the benefits that are possible.
b. At the very first 4 way meeting, the
parties and their attorneys voluntarily review and then sign a Collaborative Process
Agreement whereby everyone agrees that if either party involves the court in the process
(in other than the final divorce hearing or some other agreed-to situation), then both
attorneys will withdraw from the process. Thus, the parties would have to hire new
attorneys in order to proceed with litigation. This 'collaborative commitment', this
binding agreement to negotiate a resolution with these 4 parties without court
intervention, is the cornerstone of the collaborative process and the brilliant idea of
Stu Webb, the Minnesota attorney and architect of the collaborative model. The pragmatic
'collaborative commitment', while still offering the parties another choice, further
requires their individual and collective 'informed consent' to the process, and serves as
a deterrent to one or the other of the parties bolting from the process when the going
gets tough, as it can do.
My personal experience with the collaborative model is
very good; I have had some incredibly rewarding and challenging cases whereby the other
attorney and I were required to communicate openly and often, to talk to each other and to
our clients constantly, to draft agendas, to model good behavior for our clients in the
midst of tough negotiations, to keep the goals of the clients in the center, where they
belong. The goals are an interesting and, I believe, necessary exercise, and I find it
very helpful to work with my client before the 1st four way meeting so we can
develop, at least partly, the beginnings of the list of goals; every client has them, but
some have to be coaxed to share them – one of the most often shared is something
like, 'to reach a fair and equitable resolution in a cost-effective and dignified and
respectful manner'. Needless to say, I haven't yet found anyone who disagrees with that
one! And I find that when the negotiations get really tough (and, believe me, they
certainly do! We are, after all, still dealing with divorcing families in crisis!) my
'collaborative colleague' (the other collaborative attorney) and I can often invoke one or
another of the previously- set goals in order to (try to) move the discussion along in an
appropriate manner.
More possibilities abound in the collaborative protocol.
Although each case is individual in its needs and expectations and resources and
personalities and such, the collaborative model can be molded to fit. I have had great
fortune with our 'allied professionals', a collaboratively-trained group of financial and
mental-health professionals who are often called in to work with one or the other or both
of the clients. I have even begun to require that my collaborative clients each spend at
least one session with a divorce coach (I usually give the client about 3 names of coaches
who have been collaboratively-trained and let the client and the coach work out the
relationship) so that he or she begins to establish a professional connection and can,
hopefully, turn to that divorce coach during the process for assistance and support. Each
client needs a team during the divorce, I have found, and some people use their family and
accountant and brother-in-law's cousin and distant friends who have miserable divorce
stories to get their information and advice; needless to say, this approach doesn't often
advance the best interest of the client. So, by providing access to a team of
collaborative professionals during the collaborative divorce, the divorce attorney can
guide the client to educate him or herself about the reality and the possibilities. The
financial professionals can be used in the traditional ways of appraising or guiding or
warning or projecting, but often the financial professional is hired "by the
process", by both collaborative clients; also, the financial information is freely
shared and explained during 4 way meetings so that everyone receives the exact same
information.
All in all, I opt for choices. Collaborative law is my
favorite one, and I let my potential clients know that. In addition, I encourage each of
you readers (if you go this far in the article, you must be interested...) to participate
in the collaborative movement – educate yourself, your clients, your world. Join us
in expanding our options. The possibilities abound...
* For more information on mediators and
collaboratively trained professionals please visit the Massachusetts Council on Family
Mediation, Massachusetts Collaborative Law Council and International Academy of
Collaborative Professionals web links on the Resources Tab
under Useful Web Links on www.nedivorcesolutions.com.
Paula Noe is a prominent family law attorney who
specializes in helping families through the collaborative divorce process and is a partner
in the domestic relations firm Bowman, Moos, Elder and Noe, LLP. She can be reached at
617-494-8808 or www.bmenlaw.com.
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