SUBPART B: COLLABORATIVE DIVORCE

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1 ONWARD AND UPWARD SECTION B: DISPUTE RESOLUTION CHAPTER 4 ALTERNATIVE DISPUTE RESOLUTION SUBPART B: COLLABORATIVE DIVORCE By Andrea Vacca, Esq. Collaborative law is a process that can help a couple come to a negotiated settlement of their family law matter without ever stepping into a courtroom. It helps families creatively resolve issues with the guidance of professionals. Collaborative law is based on four main principles: 1. The parties agree in writing that they and their collaborative lawyers will not go to court. 2. Both parties commit to an honest and open exchange of documents and information. 3. Neither party, nor their attorney, will make threats or seek to force an agreement under duress. 4. Each option for settlement takes into account the highest interests and goals of both parties and their children. Throughout the negotiations, each party will have an attorney by his or her side and the focus will be kept on each party s interests and goals while searching for a solution that works for both of them. This is in contrast to many litigated cases where the focus is on each party s positions and demands being made. Litigation sets up parties for a win/lose outcome. Collaborative law is focused on finding a win/win. The process is less adversarial than litigation because, at the commencement of the case, the attorneys and clients are signing what is known as a Participation Agreement, which states, among other things, that conflict will be kept to a minimum, threats will not be made and all relevant information will be disclosed. By keeping conflict to a minimum, the process is able to move forward in a more productive manner. Time isn t wasted in court and there are no depositions or trial. All negotiations are taking place around a conference table with both parties and their attorneys present. One of the major benefits of the collaborative process is that the parties stay in control of the issues to be resolved, rather than handing that control over to their attorneys or a judge. Litigation by nature focuses on where the parties disagree and it is the litigation attorney s job to prove that one party s position is right and the other s is wrong. Collaborative law focuses on where the parties can find common ground. By focusing on each party s true interests (rather than positions), collaborative attorneys are able to help the clients to find creative solutions that can work for both of them.

2 How the Collaborative Process Actually Works Each party will retain his or her own independent family/matrimonial attorney who has been trained in the collaborative process. The attorneys will jointly recommend other collaborative professionals such as financial professionals, divorce coaches and/or child specialists as part of the team. All negotiations are conducted in highly structured, face-to-face meetings between the couple, the attorneys and/or the other team professionals. Each meeting will be based upon a written agenda that the parties and professionals have agreed upon. Each meeting will be followed up with minutes that accurately reflect what was discussed and agreed to at the meeting and what tasks need to be completed before the next meeting. The Benefits of the Collaborative Process There are many benefits to the collaborative divorce process. Here are a few of them: 1. The parties remain in control Decision-making is directly in the hands of the parties rather than in the hands of a judge. No one will be imposing a one-size-fitsall solution upon them and their family. 2. It s better for the children Children are given a voice in the process because their needs and interests are kept in the forefront of negotiations, yet they are kept out of the conflict. This helps to alleviate potential trauma that can potentially last for generations. 3. The process is confidential The family s issues and financial concerns will be kept private and out of court. 4. The process is focused on solving problems and reaching an agreement Each client s needs, interests concerns and goals will be recognized and considered. 5. The focus is kept on the future The collaborative process is not only concerned with the immediate problems that a couple may be facing. Instead, the goal is to find solutions that work in the long term. The Role of Professionals in the Collaborative Process

3 Role of Lawyers During the process, the attorney will help the client gather necessary information and will provide the client with information about his or her rights, responsibilities and options. The attorney will also help the client get clear on his or her true interests and goals so that any negotiated settlement will meet those goals. In collaborative meetings, the attorney will encourage and empower the client to speak about what he or she needs and will be there to advocate for those needs whenever necessary. Ultimately, negotiations in the collaborative process will address all of the issues that need to be resolved including child custody and parenting arrangements, child support, spousal support, distribution of property, and any other issue that is important to that specific family. If the parties are unable to reach an agreement in the collaborative process on all of the necessary issues and they decide that they need to have a judge make decisions for them, they will retain litigation attorneys for that purpose. Role of the Other Professionals Experienced collaborative attorneys know that working with other collaborative professionals can assist the couple to arrive at an agreement that best meets the immediate and long term needs of the family. These other collaborative professionals include (but are not limited to): Divorce coaches, who assist the parties to develop better communication tools so they can understand their spouse and can be better understood when expressing their own interest and needs. Coaches also help the parties manage all of the difficult emotions that arise during the divorce process. Child specialists, who give the children a voice in the process. Child specialists work with parents to assist them in creating a parenting plan that meets the children s best interests. Financial specialists, who gather and analyze financial information and assist the clients in making informed decisions about finances. The Role of the Law in the Collaborative Process The law is often openly discussed throughout the collaborative process. The law surrounding child custody and parenting time, child support, spousal maintenance and equitable distribution will all be explained to the clients. If the attorneys have differences of opinion about

4 what may happen if the parties asked a judge to make decisions for them, they will talk openly about that fact in a 4-way meeting with both parties present. Unlike in a litigated matter, the parties can choose how or even whether, to apply the law to their particular matter. Questions to Ask a Collaborative Attorney For a person who is considering a collaborative divorce, here are a few questions to ask a collaborative lawyer during the consultation: 1. Are you concerned about whether my spouse gets what he or she wants out of this divorce? This question will help you determine whether an attorney understands the difference between collaboration and cooperation. Collaboration is about making sure that both your goals and the other person s goals are met, even if the goals aren t the same. This is a lot more difficult than simply cooperating, which is about two people working together for mutual benefit toward common goals. Not many couples have common goals at the end of a marriage. One may want to stay in the marital home and the other wants to sell it. One may want equal parenting time with the children and the other may want to be the primary parent. Collaboration allows agreements to be made even when the parties goals are this disparate. 2. Do you believe that people who are in conflict can negotiate without drawing lines in the sand and using threats and coercion to get what they want? An attorney trained in collaborative law will answer Yes and will explain the difference between a position and an interest. Maintaining a position means insisting on a specific outcome. That s the line in the sand. Negotiating with interests in mind is being open to different outcomes that can meet that underlying interest. Collaborative lawyers will encourage their clients to articulate interests rather than take positions. This opens up options and may clear a path to an outcome that may meet both parties individual goals. 3. Are you comfortable using other professionals as part of our divorce team? You want to know that your attorney has had positive experiences working with different divorce professionals including the divorce coaches, child specialists and financial professionals discussed above.

5 Attorneys with a collaborative mindset will give you examples of how their other clients have reaped the benefits of having one or more of these specialized professionals on their team, and how their divorces generally ran more smoothly as a result. 4. Do you belong to any collaborative practice groups? Have you taken any advanced collaborative training courses? By determining whether the attorney is a member in a collaborative practice group, a person will know whether an attorney is someone committed to working in the collaborative law process and receiving ongoing training, or whether they simply took a basic 3-day training course for the purpose of adding collaborative lawyer to their resume. Knowing that the attorney is committed to the collaborative mindset is essential to the success of the process. The above questions will enable people going through a divorce identify committed collaborative attorneys so the process will move forward in a positive manner. Andrea Vacca, Esq. Andrea Vacca is the founder of Vacca Law and Mediation, a law firm in Manhattan that focuses exclusively on non-adversarial divorce and family law matters. Ms. Vacca regularly lectures and writes on the topics of collaborative law, mediation, and topics related to non-adversarial family law. She blogs at After practicing traditional litigation-focused family law for many years, Andrea became certified as a family and divorce mediator and later as a collaborative divorce attorney. Andrea s firm now works only with clients who want to keep their divorces out of court and want their prenuptial and postnuptial agreements negotiated in a non-adversarial manner. Andrea uses collaborative and cooperative divorce processes as well as mediation to achieve these goals. She serves as Vice President of the New York Women s Bar Association; Secretary of the New York Association of Collaborative Professionals; is on the Editorial Board of Matrimonial Strategist; on the Advisory Council of FamilyKind; is a member of the Family and Divorce Mediation Council of Greater New York; a member of New York County Lawyers; and a member of the New York State Bar Association. Andrea received her B.A. in Journalism from SUNY College at Buffalo and her J.D. from Albany Law School of Union University. She also has a certificate in Positive Psychology.