COLLABORATIVE LAW:
Elaine Buck is extremely involved in and committed to the practice of collaborative law in the context of Central Ohio divorce practice. She holds extensive training in collaborative law and presently serves as President of the Board Of Trustees of Collaborative Divorce Professionals, Inc.
What Is Collaborative Law?
Collaborative law is an extremely powerful and effective model for reaching agreement to all issues regarding termination of marriage. Parties in counsel, sign a collaborative law participation agreement. Both attorneys agree to assist in resolution of conflict through cooperative strategies rather than adversarial techniques and litigation. Parties and counsel covenant to resolve all issues outside the courtroom and to meet in four-way meetings until all issues are resolved in full. Once agreement on all issues is reached, the agreements are drafted and filed with the court to proceed with the dissolution of marriage, with the option of a private hearing always available.
Collaborative law permits the parties participate fully and understand the legal standards and process of termination of marriage. The parties and their attorneys are jointly committed to a cooperative resolution which each side can accept and support in the long term.
The collaborative process requires that the parties and their attorneys work as a team. Other team members may include neutral experts such as financial experts, appraisers, and even mental health professionals for any issue which requires specific expertise. Legal counsel must model for their clients an attitude of cooperation and respect which sets the tone for positive exchange of information and creative ideas.
The Role of the Collaborative Attorney
The collaborative law model requires special skills and behaviors on the part of the attorney in order to facilitate a cooperative resolution. The attorney must advise his or her respective client of the application of law to the parties' particular circumstances and set the stage for a successful outcome by exhibiting commitment to honesty, dignified behavior, and mutual respect.
The good collaborative attorney models for the client the ability to hear and understand (active listening) what is important to the opposing party so that the interests of both parties are identified and promoted. This requires the attorney to represent the client's interest while validating the other party's concerns.
The attorney guides the client through the process of cooperative conflict in which disagreement between the parties is used for the productive purpose of finding creative solutions and ultimately cooperative settlement. A good collaborative attorney strives to bring stability and reason to emotionally charged situations. The attorney uses clear, neutral language in speaking and writing and acts as agent of reality for unreasonable clients.
The collaborative law process requires in the attorneys to cooperate in providing all necessary document disclosure and discovery, and cooperates in setting reasonable deadlines for completion of assignments and tasks. The attorneys must commit to the settlement process and refrain from resorting to threats of litigation.
The collaborative attorney recommends creative alternatives to assist parties in reaching agreement and overcoming impasses. Such creative alternatives might include: use of neutral experts, use of mediation, use a neutral attorney to provide the parties with another opinion, use of private judging. He or she refrains from preparing or filing any documents with the court except by mutual agreement of all concerned.
Role of the Client
The parties are required to sign a collaborative law participation agreement to participate in good faith to reach a negotiated agreement which furthers both parties' interests and addresses both parties' concerns. The parties must make full and fair disclosure to their own counsel and the other party of all facts and information pertinent to their legal matter, and must refrain from asking or expecting their attorneys to advance an unethical or illegal position. The parties refrain from engaging in unnecessary discussions of past events but rather focus upon positive communications designed to settle present legal issues promptly and economically.
In the absence of mutual agreement to the contrary, the parties discuss settlement only in the context of the four-way conference or other sanctioned environment. Settlement issues are not discussed in the presence of the parties' children nor at unannounced times by telephone nor by appearance at the other's residence or place of employment.
How Collaborative Law Differs from Mediation
A mediator is a neutral individual who helps disputing parties resolve their issues. The mediator is prohibited from giving either party legal advice and from helping either side advocate his or her position. In the event that either side becomes unreasonable or intransigent, lacks negotiating skill, or becomes emotionally distraught, the mediation can quickly become unbalanced. If the mediator tries to deal with the problem, the mediator is often viewed as being biased. If the mediator is unable to correct the problem, the mediation can quickly break down or the agreement that results can be unfair.
If the parties are the represented by counsel, the legal advice may come after the mediation session and too late to be helpful. Collaborative law allows each party to have quality legal advice and advocacy at all times in the process. If either party lacks negotiating skill or financial understanding or is emotionally upset or angry, the balance is maintained though the presence of skilled advocates. It is the task of the attorney to work with his or her client if the client is being unreasonable to keep the process positive and productive.
How Collaborative Law Differs from Traditional Settlement
Most divorces settle "at the eleventh hour" after expenditure of a great deal of money and after a great deal of emotional damage has been caused. Further, the settlements are usually reached under significant tension and anxiety and on the brink of trial based upon what the lawyers believe the judge will likely rule. Understandingly, the parties are often ultimately displeased with the results and blame the attorneys. The collaborative law settlement process requires ongoing exchange of information and creative problem solving. Decisions are made with full information and in a far less stressful environment. Because the parties have been involved all the way along, they tend to better understand the options and to ultimately be more supportive of the outcome.
Why is collaborative law revolutionizing domestic practice?
- Collaborative law allows the attorney to feel better about the process of resolving issues. In comparison to traditional litigation, collaborative law in the domestic realm is quicker, less costly, more creative, more individualized, far less stressful, and far more satisfying in its results.
- Collaborative law allows the attorney to work positively with the other attorney. Rather than being "gladiators", the attorneys become problem?solvers, endeavoring to resolve issues in a manner that maximizes both parties' interests. Each attorney has incentive to work positively with the other and to thus encourage the clients to trust in their own legal representation.
- Collaborative law allows attorneys to practice law in a manner that brings credit to the profession. The attorney must model those qualities that he or she wishes to have the client and other attorney adopt.
- Collaborative law makes for better results because the attorneys are able to openly share information and work together toward a well researched, well informed resolution as to issues.
- Collaborative law is an ideal model for complex domestic cases in that it affords the opportunity to jointly employ experts who are expected and encouraged to approach issues in a balanced, non-partisan manner.
- Collaborative law is less costly to the client in that it provides more efficient use of professional time.
- Collaborative law fosters stronger alliance between attorney and client in that the client is involved in his or her representation at every step along the way. The client is thus more inclined to adopt a reasonable, educated positions.
- Collaborative law maximizes the resources available to attorneys and clients for a more creative, individualized, successful settlement scheme which will minimize potential for future litigation.
MEDIATION:
Elaine Buck is also trained in and committed to win-win divorce mediation technique, and the firm offers mediation services in the context of termination of marriage.
What is mediation?
Mediation is a collaborative, non-adversarial conflict resolution process in which the parties to a dispute are aided in their settlement negotiations by a neutral and impartial third party, the mediator. The mediator does not have the power to impose a resolution; rather the role of the mediator and the goal of the process are to help the parties achieve their own resolution. The mediator controls the process; the parties control the outcome. The mediator is responsible for establishing the framework and facilitating or assisting the negotiation process. The parties make their own decisions and assume responsibility for reaching or not reaching an agreement.
Mediation enables the parties to communicate perceptions, feelings and information directly to one another in a controlled environment. Intense conflict tends to generate misunderstanding and suspicion and having the parties talk directly to each other often reduces the hostility and facilitates rational discussion. The role of the mediator is to facilitate communication between the parties, assist them in focusing on real issues of the dispute, and generate options for settlement.
What are the goals of mediation?
- To have the parties make an agreement;
- To improve the relationship between the parties;
- To resolve the underlying conflicts;
- To improve communication between the parties;
- To prevent problems from recurring; and
- To avoid or reduce involvement in the court system.
Mediation can be useful when one or more of these factors are present:
- The parties want to retain control of the decision;
- The issues are complicated by a strong emotional element;
- The parties must interact together in the future;
- A party wants to maintain a relationship with the other in the future;
- A party is uncomfortable confronting the other without someone else present;
- The parties want a decision to be reached soon;
- Many people are involved or indirectly affected;
- One or both parties want to avoid a Court trial or adversarial litigation;
- One or both parties want to keep the resolution process private; and
- One or both parties want to reduce legal fees.
What are the benefits of mediation?
- Resolve a problem, dispute or underlying conflict.
- Minimize, enhance or avoid involvement in the Court system.
- Improve communication, understanding and empathy between parties.
- Clarify areas of agreement and define next steps to resolve disagreement.
- Prevent problems from recurring. Mediation gives the parties a sense of ownership both in the dispute and its resolution, making voluntary compliance with the agreement more likely than in the case of an imposed solution.
PRIVATE JUDGING:
In many cases, with the assistance of mediation, collaborative law, or effective assistance of counsel, husband and wife are able to come to agreement on all terms for a termination of marriage, be it by dissolution or by uncontested divorce. In this situation, it is possible under Ohio law to end the marriage in the privacy of the attorney's office via private hearing. Husband and wife never have to step foot in the courthouse. The benefits to this service are numerous: privacy; friendly and low-stress atmosphere; control of hearing schedule; no courthouse waiting time; and special accommodation for disabled or shut and clients.
For many years, Law offices of Elaine S. Buck Ltd. has used Judge Donald A. Cox of Judicial Alternatives of Ohio, Inc. to conduct private hearings in the privacy of the law offices for the benefit and convenience of the parties. Judge Cox has been conducting such private hearings since 1993. Ohio law, specifically Ohio Revised Code Section 2701.10, has provided for private trial of civil matters in Ohio, if the parties to agree and choose a retired judge to hear the matter. Should the parties opt for private judging, the pleadings and other documents are filed in the local court of jurisdiction and the final judgment is entered and enforceable in such court. However, the parties choose the judge and determine when and where the matter will be heard.
The current cost of a private hearing is $125, assuming that the filing is in Franklin County. Many clients of the firm have found that the charge is an excellent investment, given the benefits of the private hearing process in terms of privacy, convenience, and reduction of stress.
|
