By Abby Tolchinsky and Ellie Wertheim
In much the way practitioners have used mediation to defray clients’ costs and relieve over-burdened court dockets, they recently have been expanding the use of collaborative practice for the same goals.
This article explores the role of mediation in collaborative practice: an alternative dispute resolution process that has expanded dramatically in use and popularity in New York state.
According to the New York Association of Collaborative Professionals, the collaborative practice of law is, “a way of practicing law whereby the lawyers for both of the parties to a family dispute agree to assist the parties in resolving conflict using cooperative strategies rather than adversarial techniques and litigation.”1
These strategies include, signing a four-way agreement in which the attorneys pledge to withdraw from representation of their client should negotiations break down and litigation ensue, thus minimizing the specter of litigation; using four-way settlement conferences designed to encourage face-to-face good faith negotiation, which themselves are modeled on mediation communication; using neutral interdisciplinary professionals such as financial experts, child specialists, and divorce coaches, all of whom have likewise been trained in mediation methodologies and collaborative practice.
There is an explicit choreography common to all collaborative cases. At its inception, each party meets with his own collaborative counsel. At this meeting, the collaborative counsel elicits his client’s needs and interests regarding each aspect of the decisions to be resolved; communication between collaborative attorney and client proceeds in a mediative manner. That is, collaborative counsel attempts to fully appreciate the client’s priorities and point of view with respect to the conflict. Subsequent to this initial meeting, the collaborative counterparts – note that they are not described as adversaries – meet to discuss their respective clients’ concerns and the two develop an agenda for the initial four-way negotiation meeting.
At the four-way meeting, it is common for collaborative counsel to employ mediation communication techniques, particularly when speaking to the other counsel’s client.
Communication Flows Freely
In stark contrast to a litigation settlement conference, communication among the attorneys and their two clients flows rather freely. By managing the meeting in this manner, the professionals are attempting to expand the understanding in the room and to allow each party to gain insight into the other side’s perspective. After having generated that insight and understanding among the participants, the professionals can then assist the parties in brainstorming and arriving at solutions that take both parties’ priorities into account. Both the attorneys’ active listening skills and the parties’ brainstorming acceptable solutions mimic the most elemental aspects of a mediation.
The Mediation Component
How exactly is mediation a key component of collaborative practice? As mentioned, the client’s view of the conflict and how the client imagines an acceptable resolution may be structured, focus the negotiations, both in collaborative and in mediation practices. Agreeing that the goal is for mutual understanding and compromise, both mediation and collaborative practice are premised on the experience of expressing one’s needs and goals (as opposed to positions) in the presence of the other. A direct benefit of this type of communication: parties and professionals are free to imagine and explore creative solutions which may deviate from a court-driven resolution.
Similarly, participating in either mediation or collaborative practice requires a commitment to openly exchange any and all necessary information and documents needed to make fully informed decisions. As such, participating in either process is predicated on a voluntary commitment to resolve the dispute outside of court. However, the continual presence of two attorneys, and their full participation in the negotiations, is unlike many family and divorce mediations, in which parties negotiate directly and attorneys are often consulted outside of the negotiation sessions.
While mediation listening and understanding techniques are a significant departure from typical litigation settlement negotiations, the model of collaborative practice provides an ideal hybrid of both techniques. For example, the presence of counsel during the negotiations serves to facilitate the exchange of information to the parties as to how their dispute would be viewed and resolved in traditional litigation practice, including areas in which the law may be ambiguous. In turn, with full information of what a litigated result may look like, parties make decisions suited to their unique set of circumstances, even decisions that don’t necessarily conform to anticipated court outcomes.
Furthermore, the experience of having one’s own attorney at one’s side can provide parties with the confidence and sense of protection to express their needs and wants openly. Having an advocate present is also beneficial for those who are not necessarily sophisticated regarding aspects of the negotiations, including financial analysis and child development milestones and nuances. Additionally, collaborative counsel can provide a comfort and emotional boost as, unlike most commercial cases, family and divorce cases often involve intimate and difficult issues, not only regarding one’s personal finances, but also concerning details of family life – some of which may even go to the core of why a couple is divorcing. Finally, an advocate at one’s side can effectively eliminate a power imbalance or neutralize what might otherwise be an intimidating process.
While the role and presence of the attorneys during the negotiations is the most significant difference between mediation and collaborative practice, there are other points of departure, as well. Increasingly, collaborative practice promotes an interdisciplinary model. That is, teams work together to best support the couple during these difficult negotiations. In mediation, neutral experts may also be involved; however, not in the routine manner in which they are used in collaborative practice.
There, as in mediation, experts are incorporated because each party’s concerns are redefined and re-imagined as issues to be resolved for the benefit of all members of the family.
Contrast this to a traditional litigation approach, in which each party stakes out his position and seeks to prove why it should prevail in the final settlement. Coordinating this broad range of professionals necessarily entails significant cost and time. Imagine trying to schedule a two-hour meeting for a husband, wife, their attorneys, their therapists and accountants. Imagine, too, the combined hourly fees involved.
In general the costs of a collaborative process more closely match those of a litigated divorce than those of a mediation. The former two both entail retainers to separate attorneys, extensive use of the attorneys’ time both for individual and four-way meetings. Additionally, both may entail extensive use of experts.
However, in collaborative practice, one expert generally provides information and guidance for the benefit of both parties as opposed to a “battle of the experts” which sometimes ensues in particularly contentious and otherwise costly litigations.2 To that point, some people are attracted to collaborative practice or to mediation because both provide an opportunity for a peaceful divorce, one which ideally lays the groundwork for future communication thereby reducing the probability of ongoing costly conflict.
For the practitioner who may be interested in expanding the range of services offered – or who may be attracted to providing services in a less-contentious, more problem-solving and, dare we say collaborative manner – collaborative practice is a natural area to consider. Expanding the range of services a given law practice provides naturally has the benefit of attracting a broader spectrum of clients.
Additionally, since a central component of each collaborative training is a mediation course: the benefits are multifaceted. For the litigator, the mediation skills enhance one’s effectiveness in all manner of negotiations. Mediation training provides communication skills to participate in and to facilitate all manner of complex and, even highly emotional, negotiations.
For those who are attracted to collaborative practice because it operates under a different paradigm than the win-lose of litigation, collaborative work allows one to participate in a team, supporting decisions designed to benefit each member of the family during the transition through and after the divorce.
Collaborative Divorce Center
This article has focused on collaborative practice in the context of family law and divorce because that is its prevailing use. In fact, in anticipation of the opening of a collaborative divorce center, the Office of Court Administration (OCA) has sponsored a series of free outreach and training programs in collaborative practice and mediation for those experts who work with divorcing couples. At the time of this writing, according to the OCA, more than 400 attorneys, mental health professionals and financial planners have attended these programs.
Collaborative practice originated with a focus on resolving matrimonial disputes. It is particularly productive in this area because the parties have a vested interest in an ongoing relationship, especially when they are parents.
Still, just as mediation can be effective in areas such as employment and probate disputes, wherein the parties may also have incentive to preserve relationships, so too is collaborative practice beginning to expand to these practice areas. According to Ron Ousky, immediate past president of the International Academy of Collaborative Professionals, there is a great deal of elasticity in and between mediation and collaborative practice. Indeed, once a withdrawal agreement is executed by collaborative counsel, mediators may be brought into the collaborative process to assist in an aspect of the negotiations. Similarly, collaborative counsel may be called upon to advise parties to a mediation.
In essence, both mediation and collaborative practice are predicated on being voluntary, client-centered processes that operate outside of the reach of third-party decision-makers.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
2. Particularly during a recession, as families see their net worth decline and consider a divorce process which has the potential to deplete remaining assets, the costs associated with divorce take on greater importance. Practitioners may find that couples are considering a less-expensive, more-streamlined divorce process.