I have written in this blog on Collaborative and Cooperative Divorce and conducted a seminar last year for the Kane County ADR Committee on Collaborative and Cooperative Divorce. The Collaborative Divorce offers some distinct advantages to divorcing parties over the typical bitterly contested, litigated divorce. However, there have been some difficulties with the collaborative model, such that my office more typically suggests a Cooperative Model. I have developed my own approach to the collaborative process, and other cutting edge lawyers have done so, as well. In the right case, with the right parties, it’s a terrific way to help divorcing families. What is this model? Linda Roberson wrote recently about this model, and I enclose it below:
The attorneys who are spearheading the “collaborative divorce” movement have adopted this idea with the best of intentions. They are looking in good faith for a more humane and less stressful way to deal with the sturm und drang of marital dissolution. They are legitimately frustrated with the waste of time and duplication of effort that goes into simultaneous settlement negotiations and trial preparation. They want to make a hard time easier for their clients and for themselves.
We can work toward these goals without running afoul of ethical rules, and refusing to use the available resources of the court system appropriately to facilitate negotiated settlements wherever possible. Let’s call it “cooperative divorce.”
The “cooperative divorce” practitioner would:
Respect all parties and counsel and treat all participants courteously.
Respond promptly and in a straight-forward way to requests – both formal and informal – for information.
Cooperate with rescheduling requests, requests for extensions, and the like as a matter of common courtesy. Everybody needs a break sometime.
Tailor information requests to the information needed for each specific case, rather than sending blanket, form discovery documents or routinely scheduling depositions without a specific purpose.
Educate his or her client about the other party’s rights and perspective, rather than simply supporting the client’s position regardless of its merits or the realities of the case.
Encourage the client to take a broad view and consider relationship issues. Help the client focus on the issues that can be resolved within the legal system and discourage justification of the client’s bad behavior on the basis of the estranged spouse’s total lack of redeeming qualities.
Prepare seriously for settlement negotiations; do the homework that is necessary to conclude the case. Run after-tax cash flow schedules and marital balance sheets; put together comprehensive parenting plans, update financial statements – as if the case were going to trial instead of a negotiation session. Too often we contribute to delays by being unprepared to negotiate effectively.
Keep his or her word. If a cooperative lawyer commits to provide information or a document draft by a certain date, he or she does so or makes a courtesy call to explain an unavoidable delay. If a cooperative lawyer makes a proposal in negotiation, he or she does not renege on the proposal on the table and retreat to a more favorable position for his or her client.
Use the legal system as a resource to help settle the case if appropriate.
Understand the rich menu of alternative dispute resolution resources and recommend their use as appropriate.
Maintain a civil and courteous approach. If litigation is necessary, stipulate where possible, cooperate with the admission of exhibits, accommodate the other side’s expert witnesses, and advocate for his or her client without becoming antagonistic.
Most good lawyers do most of these things most of the time. But we all slip up on occasion. Committing to “cooperative divorce” avoids the problems of “collaborative divorce” and improves the practice of family law.
Thanks to Linda Roberson Shareholder of Balisle & Roberson S.C. for the above analysis.