hundreds of articles by subject
The Listserv is a free, e-mail discussion group. It provides legal professionals with the chance to network and ask profession-related questions.
This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today.
How paralegals help put the pieces together in a new family law model.
The face of family law is slowly changing as a new divorce procedure gains popularity among attorneys and clients alike. Touted as an easier, less stressful and more civil alternative to filing a divorce, collaborative family law is picking up speed in family law firms across the nation as more attention is focused on this new method.
Because of its nonconfrontational style and commitment to forgoing litigation, more and more attorneys are including collaborative law into their practices, giving their paralegals a new type of law to learn and new duties to master.
It All Started With an Idea
Twenty years into his career as an attorney, Minneapolis senior divorce attorney Stuart Webb said he was tired of handling one nasty divorce after another. He realized there had to be a better way to go through the process.
“In family law, everything is so bitter. I was so tired of it, I was going to quit law,” Webb said. “I enjoy working with clients, but I don’t like going to court.”
Instead of quitting family law, Webb decided to practice it a little differently. He and a group of attorneys came up with the collaborative law model where attorneys on both sides of a divorce agree not to go to court. With the attorneys committed to not going into litigation, the lawyers keep a positive tone and are more dedicated to resolving the issues, Webb said.
Webb started practicing collaborative law on Jan. 1, 1990, and has practiced it exclusively ever since. Today he estimates there are more than 4,000 attorneys in the United States and Canada who participate in collaborative family law.
With the collaborative law approach, parties negotiate their issues in a controlled, respectful setting with the assistance of specially trained family law lawyers.
Several steps are included in the collaborative law process. First, conferences are held to resolve the parties’ issues, such as the division of the assets or parenting decisions. Both parties agree to remain civil and set aside blame during negotiations. The parties also agree to honest and voluntary disclosure of all pertinent information and documentation.
Today, the basic collaborative model Webb established in the early ’90s has evolved from just the parties and their lawyers. Parties are encouraged to use joint experts as needed to come to an amicable agreement. Such experts can include psychologists, social workers, divorce coaches, child specialists and financial specialists, along with the attorneys and paralegals. Ultimately, the parties commit to work together to resolve issues and reach agreements beneficial to everyone involved. In the collaborative law model, no one can go to court, or even threaten to do so, during the procedures. If a settlement isn’t reached, the collaborative law process is terminated and both lawyers are disqualified from any further involvement in the case. The attorneys can never go to court for the clients who retained them.
Although similar in principle, the collaborative law process differs from mediation, where one neutral individual helps both parties try to settle their case. The mediator can’t give either party legal advice and can’t help either side advocate its position.
The primary difference with working in the collaborative model as opposed to traditional divorce is that everyone, including opposing counsel, is working as a team, said Peter Wiere, nonattorney mediator and co-founder of the Coalition for Collaborative Divorce based in Southern California. “Cooperating is the hardest thing. The other most difficult thing is teamwork,” he said.
According to Beth Honeycutt, a legal assistant at the Denton, Texas collaborative and litigious family law firm Gregory & Connor, staying out of court helps a case run smoothly. “Everyone is so much more relaxed about it,” she said. “There are no outside stressors on you as a legal assistant. With the collaborative agreement you file with the court, you tell the court you are going to go with this method, and the court essentially backs off.”
In Honeycutt’s firm, the parties and their attorneys sign a participation agreement stating that both parties agree to discuss all of their financial and custody matters openly. “Your participation agreement says you really are going to participate with the full understanding that you are being trustworthy and trusted by the other party to bring everything to the table, whether that is retirement information, separate property, community property, you name it,” Honeycutt said. “If the other side asks for something, you are going to produce it willingly.”
After a participation agreement is signed, the clients and their attorneys set up what Honeycutt’s firm calls four-way participation meetings. The location of the meeting rotates between the attorneys’ offices, so neither party feels disadvantaged, Honeycutt added.
With this team mentality, parties no longer have to worry about the other side hiring experts who might provide pumped up testimony on behalf of the client. For example, in a litigation family law case, each spouse might hire separate appraisers who go before a judge with two wildly different values, leaving it up to the judge to decide which is the correct one. “In a collaborative case, you would have the parties and their attorneys agreeing up front who they would use as an appraiser,” Honeycutt said. “The appraiser would not be padding his or her appraisal for one party or the other.”
Collaborative law can lower the stress on the two parties and speed up the process of a divorce. While a typical divorce could take years, according to Honeycutt, a typical collaborative case can take two to 12 months to resolve, depending on the extent of the parties’ assets and whether or not children are involved.
“We had a case where the parties had their first four-way participation meeting, and our attorney walked out and said, ‘Here, we can start drafting the decree. This is the agreement we made,’” Honeycutt said. When that happens, the legal assistants then puts the decree together, waits the 60 days required in Texas to file a divorce, and the case is complete.
Some organizations, such as the CCD, offer several different options for divorcing couples. The CCD starts by offering the couple the option of filling out the papers by themselves or with the assistance of a legal document assistant. If a couple understands the forms for filing a divorce agreement, they can accomplish this easily and cheaply using either of these methods, Wiere said.
The next method would be to include a mediator to help the couple resolve difficult issues. The mediator might or might not be an attorney in this case, but Wiere stressed that even if the mediator is an attorney, he or she can’t provide legal advice in this method. If more help is needed to resolve issues, the mediator can expand the team to include consulting attorneys and other professionals. If they are unable to accomplish things at this level, couples then move into the collaborative process with two collaborative lawyers, who might also expand to include an entire team of professionals.
In the end, the crux of the collaborative effort is to keep the clients from having to go into litigation, which saves the time and money it would take to go to court, and also makes the process less stressful for children that might be involved. “In family law, it’s the people that get a divorce and it’s the kids who are often innocent victims,” Wiere said.
The Paralegal in Collaboration
Although cases don’t go into litigation in the collaborative effort, legal assistants are used in much the same way they are in traditional divorces cases — they gather information, fill out forms, and through one-on-one contact with clients, they also deal with the emotional aspects of a divorce.
“You always go through some of the grief that you go through when there is a death,” Honeycutt said. “In a sense, divorce is the death of a marriage. [Legal assistants] do some handholding for our clients, which I think is one of the best ways we get to assist our attorneys. We get to help people going through these very difficult times in their lives.”
Lynette Bledsaw, an attorney for Chadwick and Mertz in Minneapolis, decided to go into collaborative law because she said she liked the idea of helping couples maintain some communication instead of acting with hostility toward each other. “It’s less damaging to relationships,” she said.
When Bledsaw uses a paralegal, it’s typically for pulling documents and drafting purposes. “There are different documents involved. One is a participation agreement. In collaborative cases, we do a joint petition. In some collaborative cases, we do a sworn statement of assets. In our office, the paralegal will pull the documents,” she said.
In Bledsaw’s firm, paralegals also can assist in drafting documents such as a Joint Petition Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree (which is the final “Judgment and Decree” and is drafted according to the language and agreements in the Marital Termination Agreement signed by the parties), as well as other documents required by the court at the time of filing, such as Certificate of Representation and Parties, Confidential Information Form and Default Scheduling Request.
At Honeycutt’s firm, the legal assistants also prepare the firm’s collaborative law notebooks. The notebooks keep the case organized and contain documents such as the participation agreement and agendas.
Sherri Goren Slovin, collaborative attorney and member of the Collaborative Law Center of Cincinnati said paralegals typically are used to gather information in family law cases. “In this case, it’s just being used for negotiation purposes, not trial. Legal research and legal analysis still is involved,” she said.
Slovin said she uses a paralegal to help with document gathering, client contact, scheduling meetings and document drafting, as well.
Because the collaborative law process is very different from traditional divorce litigation, training sessions are provided to help attorneys learn how to mediate between the two parties in the divorce. “It’s basically a different process in which lawyers have been trained in a specific choreography to come to an agreement,” said Slovin, who also provides collaborative law training for lawyers.
Slovin said in her training sessions, lawyers are trained in interest-based negotiations and skills to empower clients to resolve conflicts. “Lawyers still have an advocacy role in collaborative law,” she said.
Bledsaw said she attends training sessions provided by her local collaborative law group’s Training Committee a couple of times a year. The training is typically a two-day session in which attorneys, as well as psychologists, social workers and financial experts attend.
During this training, attendees learn how to better manage the process of collaborative law. “This includes learning how to be less like a ‘gladiator’ and more conciliatory in our responses to the ‘other side’ during four-way meetings, how to ask the right kind of questions — questions that are noninflamatory and will draw out the parties’ various interests, as well as how to help the parties be creative in finding solutions to issues that arise,” Bledsaw explained.
Training sessions are intended to teach attorneys how to educate their clients in the collaborative law process, and how and when neutral experts might be needed, according to Bledsaw. “Our trainings have consisted of those which were primarily lecture format,” she said. “In others, there have been designated attorneys ‘role-playing’ in front of the group.”
The training courses Bledsaw has attended have been taught by experienced attorneys from other practice groups and other experts in collaborative law. “Chip Rose, a distinguished mediator and attorney from Santa Cruz, Calif., was our speaker earlier this year. Stu Webb, the founder of collaborative law, is a member of our local practice group and always is willing to answer questions and comment,” she said.
Bledsaw said paralegals also could benefit from the sessions. “It would be helpful to take training sessions because they would understand the process better,” she said. “I believe it’s important that paralegals and other staff understand the underlying philosophy of collaborative law because it’s essential that all parties and their attorneys are treated with respect in all contacts with the firm.”
Not for Everyone
Collaborative law definitely is not for everyone. Clients must be emotionally prepared to approach a divorce in this manner, and attorneys must be willing to set aside any possibility to take the case to trial.
“People may think that with the collaborative method, you are getting less. It’s the opposite, but people don’t know that.” Wiere said.
He explained that some people have the misconception that the court will reward him or her more for being the “good” spouse. However, that is not be the case in no fault states such as California.
“Certain clients know exactly what they want and they know their spouses don’t want them to have it,” Honeycutt said. “Your collaborative law clients have processed a lot of stuff already. At least they are willing to talk to each other, which, in most litigated cases, clients are not. They are very against talking and there is no trust at that point.”
Without a certain level of trust that the opposing party is going to be forthcoming, as outlined in the participation agreement, the collaborative process can be all but impossible. In that case, the parties can turn to litigation with new attorneys.
“There are certain timelines we do have to follow,” Honeycutt said. “When you go with a collaborative law case in Texas, the court essentially backs off for about 12 months, and then you have to file a short notice with the court if the case is still active. Then you get another specific deadline, and if nothing has been done, the court will step in.”
Attorneys also sometimes prefer the litigation method to the collaborative, Honeycutt said. “They went to school to become litigators,” she said. “They want to go to court and they want to help their clients have their day in court.” It’s not a replacement to divorce court, Honeycutt pointed out, it’s simply an alternative to it.
The Future of Collaboration
Experts involved in the collaborative effort agree this type of divorce procedure will continue to gain in popularity and will someday become standard.
“Collaborative law is less expensive financially and usually takes less time. Emotionally, people are better off. I believe it will become more popular as people are becoming aware of the process, particularly if they have small children. The children suffer less,” Bledsaw said.
“I think there will be a time when the adversarial process [of divorce law] will become a rarity,” Wiere said. “I just don’t know how long that will take.”
As collaborative law continues to gain popularity, paralegals interested in family law will have a new field to explore.
“From the family law perspective, you have to enjoy people and you have to be organized,” Honeycutt said. “If you enjoy working with family law clients, with a lot of client contact, you will enjoy the collaborative law approach.”
Collaborative Law Resources
Rachel Campbell is a freelance journalist based in Los Angeles, and is a former associate editor of LAT and Law Office Computing. Campbell graduated from the University of Southern California with a degree in print journalism.
© Legal Assistant Today Magazine