Tuesday, September 20, 2011

Collaborative Law Comes to Alabama – FINALLY!

What a privilege it was to participate in the first ever interdisciplinary collaborative law training in Alabama!  This past weekend, approximately 40 like-minded professionals from the worlds of law, mental health and finance came together to learn how we could work together in teams to make the process of getting divorced less destructive, more dignified and respectful, and tailored to the needs of the family going through it - because marriages may end, but families do not.

Collaborative law is a process in which the parties to a divorce hire lawyers and other appropriate professionals trained in collaborative practice to negotiate a resolution of their divorce.  The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but they along with their lawyers and other team members agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.  The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers and team professionals), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution.  The process allows for other “nonparty participants” to be part of the process – financial professionals, divorce coaches, child specialists (collectively with the lawyers “the collaborative team”) – to help the parties address their individual needs and concerns, the needs of their children, and to shape the appropriate agreement to address those needs.  The process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

We had a top notch training staff, including the women who literally wrote the book (“Collaborative Divorce” HarperCollins Publishers, 2006), Pauline H. Tesler, M.A., J.D., and Peggy Thompson, Ph.D.  Joining Pauline and Peggy was Lisa Schneider, CFP, CDFA – a long time regular member of their collaborative teams from the San Francisco Bay Area.  The three days we spent with our trainers were equal parts challenging and invigorating.  I hope I speak for the entire group when I say we walked away with no doubts that the collaborative model is the healthiest, most equitable, and one of the most cost effective ways a family can traverse the minefield of divorce.

There are over 20,000 trained collaborative professionals practicing in at least 19 countries worldwide.  This model has been adopted, approved and promoted by numerous judges, state appellate court justices and bar associations around the U.S.  Here in Alabama, Robert E. Lusk, Jr., assistant General Counsel to the Alabama State Bar Association, has confirmed for us that collaborative law is alive and well in Alabama and in full compliance with the Rules of Professional Conduct (note to those lawyers who still want to question whether collaborative agreements are ethical – this should allay your concerns.  Please feel free to call the Bar if you have questions about the ethicality of this process).  Further, the National Conference of Commissioners on Uniform State Laws has promulgated the Uniform Collaborative Law Act, which has been proposed in the Alabama Legislature by Senator Cam Ward.

The process just makes sense.  Lawyers are freed up from trying to wear every hat to focus on what they are trained to do best – address legal issues.  Divorce coaches and child specialists, who are trained mental health professionals, help the parties address the emotional and decision making needs and insure that the children have a well trained voice in the process that is all their own.  A neutral financial professional gathers the data related to assets, debts, expenses and the like, and presents a neutral picture of the marital estate so that everyone is working from the same – and most importantly accurate – picture of the family’s financial position.  That same neutral financial professional also helps everyone understand the financial implications of the decisions the parties are making under however many scenarios the parties want to look at.  The end result is an agreement that addresses the needs of the entire family that the parties themselves have created with the assistance of the proper professionals – and those professionals remain available to the family after the divorce as they transition into the next stages of life. 

Common questions come up when discussing collaborative law: How can a process involving all those professionals be cost effective?  Won’t the process take forever with all those professionals in the mix?  The answers are fairly easy.

First, clients are not paying lawyers (typically the highest hourly rates on the “team”) to try to be financial professionals digesting and explaining the complexities of finances.  Nor are clients paying their lawyers’ hourly rates to address every anger or emotional issue that arises – and lawyers are inherently the wrong professionals to bring these types of concerns to anyway (we typically, although not always intentionally, end up throwing gasoline on the fire).  Further, clients are not asking lawyers to make their best guess at what is the proper role for each parent with their children after the divorce. 

Also, clients are not paying for multiple trips to the courthouse for their lawyers to attend hearings or try the case.  On any given day in Birmingham, there are approximately 2,500 divorce cases pending and those cases take on average anywhere from a year to eighteen months to reach trial.  Comparatively, the collaborative process will typically take a matter of a few months to reach resolution.  The biggest plus of collaborative law is that clients are not leaving the most important matters in their life - the involvement of each parent with their children and how post-divorce financial issues will be handled - to a well-intentioned complete stranger (the trial judge) who listens to a few hours of testimony and makes his or her best efforts to make those decisions for them.  The clients make fully informed decisions for themselves.

The process takes less time than it takes to go to trial or settle your case on the courthouse steps, and the time that is spent is divided between various professionals at hourly rates that are appropriate to their professions.  The process is quicker and less expensive than litigation and nowhere near as destructive.

Collaborative law promotes dignity and respect.  It is tailored to the family in question.  It is fair.  It is confidential.  It is transparent. It is cost effective. It is time effective.  It works.  I look forward to watching this model take hold in Alabama and am proud to call myself a collaborative professional.

For more information on collaborative law, please check out the following sources:

Friday, September 9, 2011

Birmingham Bar ADR Seminar – an Update from the Bench

I participated in a panel discussion yesterday at the Birmingham Bar Center regarding how ADR can help ease the backlog of cases currently facing all divisions of our courts in Jefferson County.  I was honored to be on this panel with our presiding judge, Scott Vowell, criminal judge Stephen Wallace, domestic relations judge Julie Palmer, mediator John Hall, and attorney Anthony Joseph.   I send out a special thank you to Michael Trucks for thinking of me to fill his slot on this panel when he became unavailable to participate.  I appreciate any opportunity to speak about ADR issues as I believe strongly in the process and am committed to spreading the message.

A number of topics related to ADR and the courts were presented to a group of about 35 lawyers in attendance.  An overriding theme was the current cutbacks our courts face.  The numbers of cases stuck in the system is staggering – in the domestic relations (divorce) courts alone on any given day there are approximately 2,500 cases pending, and many stay in the system for a year to 18 months or longer!  Mediation can help move cases through the system – while providing better results for the parties in a cost effective manner.   Spreading the word is the key.

We discussed a number of great ADR programs working in our courts – volunteer mediation dockets in district civil and domestic relations courts, pro bono mediation available in circuit court, proposals for mediation in criminal cases, work with the Birmingham Volunteer Lawyers Program, the Cumberland School of Law Community Mediation Center and its program for mediating college support cases at the Jefferson County Family Court, and the upcoming Collaborative Law training.  Birmingham has a very diverse and vibrant ADR community.  Our ADR section of the Birmingham Bar is doing a great job to spread the word that better alternatives are out there.   I am committed to doing my part – and I hope the legal community will take greater advantage of the resources available to help ease the burden on our courts during this time of budgetary cut-backs.