By Steve Lash
The Daily Record Newswire
BALTIMORE, MD - Talk more to each other, less to the judge.
That's the theory behind the collaborative law process, designed to advance settlements of civil cases without trial.
While it shares that goal with most methods of alternative dispute resolution, collaborative law is unique in that the opposing parties hire counsel solely for the purpose of negotiating an out-of-court settlement. If the process fails, the parties must find new lawyers - a strong incentive to work things out.
Eleven states have enacted a collaborative law act in the last five years.
Collaborative law advocates say they hope the momentum drives more interest from lawyers and parties alike.
Collaboration "allows parties to have control over how they want to disassemble their marriage and prepare for the future," said attorney Stacey E. Andersen, A Baltimore solo practitioner and president of the Maryland Collaborative Practice Council. "It allows them to achieve a durable agreement."
Carrot and stick
The collaborative process permits divorcing spouses to speak directly to each other with the assistance of their attorneys. Often a neutral accountant is present to recommend the division of property, as well as a child psychologist, if necessary. No mediator is present and either spouse can call off the process and bring the case to court - but there is a catch.
If the process fails and the case heads to litigation, the spouses must retain new counsel under the law and rule.
The policy behind the need for new attorneys is to encourage the divorcing spouses to remain in the collaborative process, which is generally less acrimonious than litigation in family-law disputes, said attorney Kathleen M. Wobber, the council's secretary.
"It allows for apology," said Wobber, of Parler & Wobber LLP in Towson. "There is no place for apology in litigation. In fact, it is discouraged."
In a collaborative family law case, the parties would agree to full disclosure of assets and a discussion of child custody issues in hope of avoiding the actual and collateral costs of litigation - like putting the fate of their children in a judge's hands.
But family-law attorney Mary Roby Sanders voiced concern with the expense of a collaborative law process, which involves the retention of experts on many topics, such as an accountant and child psychologist.
Sanders also questioned the need for the collaborative process because most family-law practitioners know each other and strive to settle cases amicably even during the course of litigation.
"We generally have a collegial relationship with our opponents, which is helpful to the clients," said Sanders, of Turnbull, Nicholson & Sanders P.A. in Towson. "Most attorneys work collaboratively in the family law realm, or we try."
Attorney Luiz R.S. Simmons, another skeptic, said the inconvenience and expense of finding new counsel if collaboration fails could place an "inordinate" amount of pressure on either or both spouses to remain in a process that might not bring them an adequate resolution.
"Having to, in effect, divorce yourself from the lawyer and start a new relationship is threatening to a lot of people," said Simmons, a Silver Spring solo practitioner and Democratic state delegate from Montgomery County. "You have to go out in the cold and start with someone new."
But attorney Craig J. Little, who founded the Maryland Collaborative Law Association Inc., called the criticism reminiscent of concerns lawyers expressed about having family-law disputes resolved through mediation a generation ago, when that was a new alternative.
"Every attorney works from their own frame of reference," said Little, a Towson solo practitioner. "Mediation was the new kid on the block 15 years ago."
"It will take time" for collaborative law to be fully embraced, he added, adding he hoped it would not be a long time.
Duty to investigate
Not everyone is a good candidate for collaborative law. In fact, attorneys who plan to represent a client in the process should first make a "reasonable effort" to discover whether the client has had a "coercive or violent relationship" with another party. If the investigation reveals such a strain, the lawyer would have to decide if the collaborative process is appropriate.
The preliminary rule also contains an "informed consent" provision requiring lawyers to provide their clients with "information that the attorney reasonably believes is sufficient for the client to make an informed decision about the material benefits and risks" of a collaborative law process. The attorney must also tell the client the process is voluntary and that any party can end it for any reason or no reason at all and resume with the litigation.
The parties would also be able to ask the court to put the litigation on hold during the collaborative process. The rule would require judges to set a specific end-date for the stay, which they could later extend.
Family-law attorney Jac E. Knust said collaboration is not the first word people think of in the often-heated context of divorce, particularly if children are involved.
He said the process can and does disintegrate quickly "when one or both of the parties don't have a grasp of reality."
For example, a husband or wife might be so sure they are in the right that they "don't see any grays in this world; they see everything in black and white," said Knust, founder of The Collaborative Law Group in Columbia.
"It's probably not a good process for them," he added. "They're going to fight it every step of the way, thinking the judge is going to give them a better deal."
But the collaborative process is appropriate for divorcing spouses who do not want to cede the final decision to a judge or endure the time and expense of depositions, interrogatories and court hearings, Knust said.
The collaborative process "really puts the onus back on the parents, where it should be, or back on the spouses, if there are no kids, to resolve their own dispute," Knust said.
Agreements reached through collaboration rather than litigation, he said, are more likely to provide "a lasting peace."
Published: Thu, Dec 04, 2014
