12 July/August 2012 / The New York County Lawyer
A Smoother Divorce Process: Introducing Collaborative Law By Brad Andrews In divorce law, Collaborative Law should be the norm and litigation should be the alternative. Everyone knows that couples are more likely to be satisfied with, and to adhere to, a resolution of their issues that takes the form of a settlement agreement as opposed to a decision following trial. And an agreement that can be reached prior to motion practice or discovery is surely preferable to one reached on the eve of trial. In New Jersey and elsewhere, family lawyers are required to advise potential clients of the various forms of ADR - typically identified as mediation and arbitration - during an initial consultation. The rule recognizes that many clients would be better served by having their issues addressed out of court, and that the bar better serves the public when it ensures that couples who do decide to litigate do so only after having considered all of the available options. The primary ADR forum for family law matters is mediation. But in recent years
a new option—called Collaborative Law—has gained a foothold. Innovated in 1990 by a Minnesota divorce attorney named Stu Webb who had grown frustrated by the slow and imperfect justice to be had in the family courts, Collaborative Law has slowly spread throughout the country and internationally, primarily by word of mouth, by those who have come to believe that it represents a far better way to resolve the difficulties typically surrounding the dissolution of a marital relationship. What is Collaborative Law? It’s a process that occupies a sort of middle ground between mediation and litigation. Each side is represented by an attorney. The goal is for the attorneys, assisted as appropriate by financial experts and “child experts” - social workers or psychologists - to negotiate a resolution to the issues. What differentiates Collaborative Law from a traditional outof-court negotiation between the attorneys is the signing of a “Participation Agreement” by both clients and both
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attorneys. The agreement lays the foundation for the Collaborative process, laying out each party’s rights and responsibilities. Most importantly, it sets forth that in the event that the Collaborative process breaks down; neither attorney is permitted to represent the client in court. This restriction is critical for at least three reasons. First, it ensures that both attorneys are fully committed to resolving the case out of court because neither stands to profit from initiating litigation. Second, it creates a financial incentive for the parties to overcome any difficulties within the context of the Collaborative process, because abandoning the process means discharging the attorney and paying a new retainer to get a new attorney up to speed. Third, it serves to relax the tensions between a client and the other attorney in a fourway meeting, because the client knows that even if the process were to break down, he or she will never be sitting in a courtroom being cross-examined by that particular person. In the view of Mr. Webb—one shared by this author—Collaborative Law should not merely be an alternative method, employed in the occasional case where the parties seem to be getting along particularly nicely. It should be the norm, employed in the vast majority of cases. Only in those rare instances where the process fails should litigation be initiated as a last resort. In certain communities, Collaborative Law has indeed become the norm. About ten years ago, all 29 of the attorneys regularly practicing family law in Medicine Hat, Canada, were trained in the Collaborative process. Within six months of the first half of lawyers being trained, motion filings were down by 50 percent. Following the next training, they were down an additional 25 percent. Now, virtually all cases in that community are resolved through the Collaborative process. Collaborative Law does exist in New
Balancing Career & Family (Continued from page 1)
are older, they are involved in more activities and the homework is harder to help with. I think the biggest obstacle is carving out personal time for yourself. I used to look forward to Sunday afternoons. I’d leave the kids with my husband and go get a pedicure. Over the past few years, I’ve discovered a love for running. I try to run in the morning before everyone wakes up or at night once everyone is bed. Having some nugget of time for yourself is truly the only way to stay sane. Q-How can a parent stay active in his or her children’s lives when working full time? A- Plan, plan, and then plan more. For me, the month of June had a different activity every week (field day, art show, band concerts, dance recitals, end of school picnic). I planned for it – those days I either worked from home or planned to come in late even if it meant staying late. You don’t need to go to every event, but instead pick a few and get your child excited for that event and your presence there.
Q-Are reduced billable hours/tiered pay scales a reality in many workplaces? A- Yes, but there needs to be flexibility on both ends. When I was part time, I did about two hours of work on my day off mostly from my BlackBerry. Occasionally, I’d have a grueling month – summary judgment briefs or back-to-back depositions. If I billed an extraordinary number of hours on those months, I’d try to make up the time the next month. It’s really the same for a full-time lawyer – there are some months that they bill over 300 hours and then the next month, they only bill 150. It’s a give and take and that should be the expectation as a part-time lawyer. It’s all relative. Yes, the part-time lawyer may need to do some work on his or her day off, but at the same time, the full-time lawyer may need to do some work until midnight or on a Sunday. However, if you are billing 6-8 hours on your day off, it’s time for a discussion with the partners for whom you work. The more senior you become, the easier it gets because you can delegate work down and just review and sign off on work product. Q-What are some options for maintaining work/life balance if you don’t want to reduce your compensation or hours?
A- Wake up early. I sometimes get up at 6 am and log in. I get a lot done before the house comes to life at 7:30. Leave at 6 pm and go dark until 9 pm and then log back in. There are periods throughout the day that I am unavailable because I’m in a meeting or at a deposition. There’s no reason that I cannot be fully occupied because of the kids for a similar period of time. Q-How do you most effectively manage your time? A- I keep “to do” lists at home and at work and plan for commitments and deadlines. Q-Do you find that there is negativity toward working parents and, if so, how can one address that? A- When I worked from home one day a week, I used to have to correct a partner who would refer to it as my “day off.” I actually used to bill more time on that day than any other day of the week. My advice is to address negativity, don’t ignore it. Q-How do you set clear boundaries at work so employers, co-workers, and your staff know when you are available to work? A- I don’t think you can set clear boundaries. I think you need to be flexible. If a
York. There are various associations, such as the New York Association of Collaborative Professionals, whose website is at www.nycollaborativeprofessionals.org. In addition a website with more extensive resources is maintained by the International Academy of Collaborative Professionals, at www.collaborativepractice.com. The site includes resources such as articles, videos, and forms such as sample participation agreements, and a “Collaborative Divorce Knowledge Kit” which can be used, among other things, to introduce a client’s spouse to the concept, with the goal of eventually persuading him or her to engage in the process. And the New York courts have published an excellent FAQ, available at www.nycourts.gov/ip/collablaw/faqs.s html. Yet, Collaborative divorce remains a fringe movement, employed in a relatively small percentage of cases. In this time of budget cuts and especially crowded dockets, it would seem that now is the time for it to be utilized on a much broader basis. Overtaking litigation as the norm will take time - perhaps a very long time. But the more cases that can be resolved through the Collaborative process, the better. Not only would those employing the process resolve their cases amicably and without the stress, time, and expense of litigation, but those cases that were litigated would receive more attention due to less crowded dockets. Family law practitioners unfamiliar with Collaborative Law should take a moment to review some of the resources mentioned in this article, so that although it will take time for Collaborative practice to become the norm, it might at least become the norm for discussion during an initial consultation. Doing so would serve well the interests of both clients and the courts. Bradley H. Andrews, Esq. is a collaborative divorce attorney and NYCLA member. client calls and says they just got served with a TRO, you can’t say that tomorrow is your day off. If you are part-time, I also think you are better off not reminding everyone of it—just get your work done without wearing your arrangement on your sleeve. If a lawyer wants to schedule a weakly team meeting on a Thursday and that’s your day off just suggest a different day. I leave every day at 5:30 to relieve my sitter. When someone wants to schedule a meeting at 5, I usually say “How about 4:30?” I don’t explain that I need to catch the 5:44 train so 5 won’t work. Q-What are some resources (web sites, organizations, etc.) you recommend for working parents looking to maintain work/life balance? A- Network within your firm. Look for role models or work with your colleagues to create and change the culture. When I was at a branch office of a large firm, I was the first woman to go on maternity leave and the first lawyer to work a flexible schedule. A colleague and dear friend of mine had her baby six months later. Together, we created a culture where pumping in your office became the norm. We were there for each other through many struggles and achievements. It truly was sisterhood and it kept me sane.
Published on Jun 28, 2012
Published on Jun 28, 2012
Work-life balance has been a topic of much interest over the last several years, and we have devoted this issue of the New York County Lawye...