Collaborative Practice Tips
By Maribeth Blessing, Esquire
I. THE INITIAL CONSULTATION
Under the Professional Rules of Conduct, attorneys are bound to be competent in their specific area(s) of practice. In their representation of their clients, attorneys must always conduct themselves with due diligence and be ever vigilant as to what course of action is in the best interests of their clients and how any action may impact on the client and their family. Attorneys are counselors at law who provide their clients with all of the information needed to make informed choices. Part of the ethical duty of any family law attorney in an initial consultation is to ensure the client is aware of ALL of their options as to processes available to address and resolve their issues in dispute. Accordingly, a thorough discussion of the processes, along with the pros and cons of litigation, arbitration, cooperative family law, collaborative family law, attorney negotiation, mediation, and independent party negotiation must be explored with the client. Such a detailed analysis is necessary before any assessment of the appropriate dispute resolution process or processes for the particular client before you is possible.
Now that the client has a general idea as to processes and procedures, the attorney is ready to help the client decide on the right “fit” for their needs. Gather basic information about the family and current living and financial arrangements. Screen for domestic violence issues, dependency issues, substance abuse issues, and assess the appropriateness of possible processes for this client, so that you may guide them to focus on those processes that meet their needs. During the initial interview, allow the client to tell their story in the manner most comfortable to them, and listen, listen and listen again so that you are able to help the client frame and prioritize their issues and concerns and set appropriate and realistic goals, both short-term and long term. Guide the client in reframing their issues with a movement towards interest based as opposed to positional based goal setting. Orient the client to brainstorming creative and solution based goals with a look to the impact on themselves, their spouse, and their family. Provide the client with tools necessary to open dialogue with their spouse as to selection of process, and consider an invitation to process letter from the attorney to the spouse or spouse’s attorney if appropriate. Walk away materials such as Brochures, web site information for further self-education, and process summaries are excellent tools to help the client assess the process appropriate for them and/or their family, and to open discussions with their spouse in hopes of a mutual and informed choice of process.
C. INFORMATION SHARING
Once the client is oriented to process and procedure, and has begun to set realistic, and solution oriented goals, the attorney can move on to gathering and sharing information. In a preliminary basic manner, outline the marital assets and liabilities while assessing the level of knowledge your client has as to the family finances. Begin to frame discovery needs and help the client determine whether or not they are able to provide some of those needs. Ask the client to obtain their credit report. Do preliminary support calculations and review family budgets to help focus the client on realistic expectations. Present and review with the client the appropriate Fee Agreement, and if the collaborative process is chosen, present and explain the Participation Agreement and the necessary commitment to the collaborative process. Help the client understand his or her role, your role, and the role of the experts.
II. THE COLLABORATIVE PROCESS
A. PREPARING THE CLIENT FOR FIRST AND SUBSEQUENT MEETINGS
Review with the client the goals of facilitating constructive communication, full disclosure in all areas, exploring and maximizing creative options and outcomes, maintaining a safe and productive environment, and focusing on the best interests of the family and in particular, the children, if applicable. Review the Collaborative Participation Agreement again. Discuss expectations and prepare the client as to how lawyers, and/or the professionals involved may act and their respective roles in the process. Explore the need for financial planners or child specialists, or possibly a coach for your client. Share the meeting agenda and focus the client on the items listed. Develop a priority list along with options to be discussed at the four way meeting. In doing so, assist the client in identifying their specific needs, goals, motivation, sources of satisfaction, and interests as well as those of their spouse. Discourage positional bargaining and focus on interest based bargaining. Estimate the likely key issues of the spouse (both substantive and procedural) and identify all of the facts that may be expected to help the parties communicate effectively and commence mutually collecting documentation for disclosure.
B. PREPARING FOR THE MEETINGS
Meetings typically take place about two to four weeks apart to enable the parties to complete their assigned tasks and/or for the parties to work with other team members as necessary. The meeting environment is essential to the success of the meeting. Choose a place with a safe, warm, friendly atmosphere as opposed to a “sterile” meeting place. Never meet at a courthouse. Always have refreshments, both snacks and beverages available in the meeting room. Allow the parties to select their seats first, but if tempted to “steer” them, put the parties in the “power” chairs at the long ends of the table, not the attorneys, or better yet have no chairs at the long end of the table. A round table is preferred, but if using a conference room table, arrange the chairs for maximum eye contact. Both attorneys should be ever aware of body language and intonation. This is the parties’ process, so the attorney role is one of support. Never should the attorneys monopolize the conversation, but rather, the parties should have been prepared by the attorney prior to the conference as to managing their conversations. The tone should be one of cooperation and problem solving. The attorneys should ensure that both parties are respected, have the opportunity to speak and feel heard. Attorneys must be prepared to address the emotional as well as the financial and substantive needs of the parties.
To get started, set up a meeting or a conference call with your client’s spouse’s attorney. Share whatever factual or substantive documentation or information you have received from your respective clients. Explore the need for financial planners, child specialists or coaches, and the family’s financial ability to support other experts. If engaging other experts, determine the specific roles of those experts for presentation to the parties at the first meeting. If other professionals are involved and sanctioned by the parties, a follow up conference call or meeting with attorneys and the professional(s) should be established and a neutral case manager should be selected among the professionals. The professional’s role in the process should be identified – i.e. information gathering only, meeting with parties and/or with full team and parties, long range planning assessment, possible distribution input, financial assessment, cash flow analysis, input into custodial schedule development, interfacing with parents, children and family support services, etc.
Set the meeting agenda and designate the meeting time and place. Assign one of you to be responsible for taking notes and preparing a detailed Memorandum of the meeting and “To Do” list for both parties and counsel. This task should be alternated per meeting. The first meeting agenda should include the following: Introductions and housekeeping (i.e. ensuring the parties know where the restrooms are located, have the opportunity to request a break, have a room available where they can privately consult with their attorney; have access to refreshments); setting of tone for meeting; establishment of agreed ground rules for meetings; introduction and outline of the collaborative process; review and signing of participation agreements – both client and attorney; discussion of reasons for choosing collaborative process and expectations and goals; discussion as to involvement of other professionals – financial planners, appraisers, child specialist, etc.; confirmation of and/or redefining current living arrangements and interim financial support; identification of party priorities and/or pressing needs; fielding questions of either party; identification of goals and interests; compilation and sharing of information and documentation; identifying needs for further discovery of information and assignment of homework tasks; brainstorming and identifying options, alternatives; recordation of agreements reached; set next meeting agenda; obtain client feedback as to this meeting.
Keep in mind that the conflict/resolution process consists of identifying the issues, gathering the facts and documentation, developing options, and negotiating solutions in an atmosphere of acceptance and respect. Ensure that you debrief your client after each meeting. Discuss their reaction to the meeting, their ongoing concerns and needs. Review with them their assigned tasks. Answer their questions.
The number and timing of the four way meetings is case specific. It is not unusual for there to be large gaps of time between meetings where one spouse is not in the same emotional place in accepting a divorce situation, than the other spouse. Future four way meeting beyond the first must be carefully planned as well. Determine who the players are, and if experts are attending, ensure there is a conference call for preparation and agenda setting prior to meeting with the parties. Identify the needs and interests that may be underlying issues for the parties and ensure they are communicated and understood. Clarify needs, motivations and goals. Identify shared feelings and agreements, and generate a wide range of options for those that are not shared. Analyze data together with the parties, and ensure both clearly understand the impact of the data and the numbers. Take the time to put all of the information and options on the table before evaluating any of them. Review the law and determine the role it will play in your negotiations. Look at ranges of outcomes. Support the outcome that best meets the needs of both parties and is acceptable to each. Recap the accomplishments of the parties at the end of each meeting. Check in as to their comfort level and success meter. Leave time for questions and verify homework assignments for both the parties and counsel, who will be sharing in memoranda and document preparation. Use the Memorandum of the last meeting to begin the conversation of the next. Start setting the agenda for the next meeting with the parties at the end of each meeting. Most of all, keep the tone of the meetings cooperative and build on the positive.
Call For An Initial Consultation
Contact our Philadelphia area law firm to schedule an initial consultation to learn more about collaborative divorce. Call 215-392-0849 for an appointment for a 10 minute conversation with a lawyer. We also offer a two hour consultation for a very reasonable fee.