The Law Office of George J. Chehanske

D.    War General/Diplomat Strategy Mistakes Reduced

One of the biggest strategy challenges a lawyer faces in the litigation process is trying to wear two hats at one time. In the litigation process even if the parties are intent on settlement the lawyer none the less has to in some fashion keep their "war general" hat on. One of the biggest strategy mistakes a lawyer can make is trying too hard to settle when they should be preparing for trial or pushing too hard to prepare for trial when they should be exploring settlement options. It is hard to balance wearing the war general and diplomat's hat at the same time. It is hard to serve the two masters of dispute resolution - trial and settlement - at the same time.

It is hard to both fully prepare for trial and keep everyone relatively calm to pursue settlement options. Put another way there is no friendly way to depose the husband's girlfriend. In the collaborative law process the focus is solely on settlement. This allows the advocate to focus everything they do on increasing the likelihood of settlement without being worried about being caught short at the courthouse because of a failure to request or respond to formal discovery.

E. The Collaborative Law Process Has Aggressive Emotion Management Tools

1. Use of communications facilitators or neutral mental health professionals

The collaborative law process often stresses and encourages the use of a "team" approach to the negotiating process. Part of this team is a communications facilitator. This person is a mental health professional who is trained in helping people manage their emotions and communicate more constructively in an emotional atmosphere. There is a saying or concept that "men are from Mars and women are from Venus." When men and women get divorced and when there are emotional issues in that divorce, husband and wife or mom and dad may communicate as if they are a lot further away from each other than Mars and Venus.

Lawyers have little or no formal training in how to help people deal  with overwhelming emotions. Much of what lawyers do as a matter of routine effects people in an emotional way that is often unintended by the lawyer. For years lawyers have been struggling to help clients through an emotional process while for the most part being untrained and unqualified to address emotional issues that confront and at times overwhelm clients.

It is often said that family law is ten percent legal/financial and ninety percent mental/emotional. If this is so, why not bring someone into the settlement process that is actually trained and skilled at managing the emotions of the parties and their lawyers in the negotiating process?

Having a communications facilitator involved in the settling process can be invaluable. They can serve to enforce the communications ground rules, help the parties manage emotional eruptions that develop during the settlement process and help both the parties and their lawyers communicate more effectively with each other.

2.     Use of Neutral Non-Testifying Financial Experts

Many times using a neutral financial expert can help avoid situations where legitimate, useful settlement options are rejected simply because it's "his" idea or "his lawyer's" idea. There is a lot of messenger killing in the divorcing process. Sometimes a spouse can better hear a financial idea or financial reality if it is delivered by a neutral voice instead of from one of the parties or their lawyers. Additionally using a neutral financial expert can help defuse or reduce arguments concerning financial issues such as value, characterization, taxation, discount rates, rates of return and other financial issues.

3.     Use of Neutral Non- Testifying Child Specialists

In the collaborative law process the parties routinely involve a mental health professional trained in children's issues to help the parties come up with a workable parenting plan. In the collaborative law process this mental health professional will not testify for or against either party. This helps reduce emotions by creating an atmosphere that is less blame oriented and more problem solving oriented. This helps the expert and the parties focus on finding a plan that will work for the children rather than focusing on each party's faults or assessing blame for the situation with the children.

F.    The Collaborative Law Process Creates a Less Emotionally Volatile Atmosphere

1.     The Parties Follow Expectations of Conduct

In the collaborative law process the parties commit to follow written "expectations" of conduct" aimed at keeping communications during the negotiating process civil, respectful and constructive. The effect of even having these rules and discussing them between the parties helps defuse the emotional atmosphere at the negotiating table. In the litigation process, discussing or agreeing to such rules if done at all is usually done in a less explicit manner.

2.     The Parties and Emotions Are More Removed from the Courthouse

Because the parties cannot rush to the courthouse when they run into impasses this allows for a cooling off period to allow parties to more fully consider their options instead of making an emotional decision that puts them in front of a judge three days later. Sometimes cases are set on an irreversible course of destructive litigation because of a temporary hearing that started over a small fire that quickly dissolves into a raging forest fire.

3.     The Requirement that the Collaborative Lawyers Cannot Later Litigate Defuses the atmosphere dramatically

In the collaborative law process the lawyers involved cannot litigate against each other or the parties. This requirement has the effect of enormously defusing the emotional and egotistical tension in the room. Although tensions and egos can get strained in the collaborative process the collaborative lawyers will never be able to actually fight each other or attack the other party in court. This has the general effect of making both the lawyers and parties approach each other in a more collaborative and conciliatory fashion. Additionally because the involved lawyers will not be able to personally carry out any courtroom strategy or tactic, when courthouse options or likely results are discussed, they are discussed in a less personal and less emotionally threatening way.

G.    Fees and Effort Efficiently Used

1. No funds spent on procedural issues and trial preparation

                                                                                                                                                                                              
In the collaborative law process the parties do not pay their lawyers to comply with all the procedural rules that govern discovery and the rules of evidence. The parties do not spend money for their lawyers to interview witnesses, prepare direct and cross examinations or practice opening and closing statements that never get used.

 2.    All Time Spent on Trying to Support Settlement

The money that the parties do spend on their attorneys is all oriented towards actions related to trying to settle the case. They do not pay for trial preparation expenses that may never be used.

H.  The Collaborative Law Process Creates a Better Atmosphere for Creative Brainstorming

In general the negotiation atmosphere created in a collaborative case is by design less volatile and less threatening. A goal of the process is to create a safe process to express and resolve conflict. In general it seems that there is a greater possibility of creative thinking and creative problem solving when people are working in calmer, more emotionally stable atmosphere than an unstable one.

Negotiations in the litigation process can be more fear based. In the litigation process the threat of a courthouse showdown or a confrontational deposition is more imminent. There is virtually nothing about the litigation process that causes people to feel more relaxed, less vulnerable or safer. While fear based negotiations can certainly inspire settlement to avoid confrontation, possible creative solutions may be overlooked in a more heated emotional environment.

When attempting to settle in the litigation process, the language the lawyers and parties use is often very different than in the collaborative process. In the litigation process negotiations are more likely to be conducted with an "us vs. them" or "gotcha" attitude and using battlefield metaphors and language during the negotiation process. This adversarial attitude and mentality is often polarizing and can make achieving settlement more difficult. While the parties in the collaborative process are adversaries and have competing interests, the process itself attempts as best as it can to encourage cooperation and collaboration to discuss and solve problems. The litigation process by its nature is adversary and negotiations in that process are more likely to become adversarial and polarizing.

I. The Collaborative Process has a Better Schedule

Meetings in the collaborative process are all scheduled by agreement. There will never be a situation where a judge is ordering a mediation or hearing during a lawyer's family vacation or during a client's important business meeting. The scheduling of meetings in the collaborative process are agreed upon by all parties and their attorneys.

J. The Full Disclosure Assurances of the Collaborative Law Process Help Reduce the Risk of Getting Snookered

      Collaborative law participation agreements include provisions providing for the full and candid exchange of information between the parties and their attorneys. The collaborative law participation agreement has numerous provisions requiring full disclosure. Included in the usual collaborative law participation agreement are provisions that:

-     Require a party's attorney to terminate the collaborative law process if a party insists on refusing to disclose relevant information.

-     Awards to the innocent party 100% of any community assets that are later found to have been intentionally not disclosed.

The requirement of full disclosure exists without having to be triggered. In other words even if the other side does not ask for the information the information must be disclosed if a party putting him or herself in the other party's shoes would want to know the information prior to making a settlement decision.

In the litigation process there are rules governing disclosure but they are vastly different than in the collaborative law process. Full disclosure is not an assurance of the litigation process. In the litigation process, full disclosure often depends on first complying with the rules of discovery and procedure. In the litigation process parties are required to disclose information that has been requested in the proper manner and is not subject to some procedural or evidentiary objection. Parties trying to settle in the litigation process often forgo formal discovery and without formal discovery there are usually no affirmative duties of full disclosure imposed or required of the parties unless other agreements are made.

The full disclosure obligations of the collaborative process do not guarantee absolute full disclosure in all cases; however, on the whole, the obligations and assurances of full disclosure required by the process create an atmosphere where the parties are attempting to insure they have provided full disclosure. In the litigation process a goal of at least one of the parties may sometimes be to search for legal and ethical ways to avoid being required to fully disclose critically relevant information.

K. The Collaborative Process Often Leads to a Better Quality Deal for the Parties

The collaborative law process expressly focuses on interest based negotiations. A significant part of the collaborative process involves probing the parties to understand their goals, interests and concerns. Negotiations are centered on trying to achieve settlement options which best serve the shared and competing goals, interests and concerns of the parties.

An example often used in the collaborative process to illustrate this point is the story of two ladies fighting over a dozen oranges in the town market. A wise old Judge appears and quickly solves the dispute by awarding each lady half a dozen oranges. Both ladies then become furious with the wise old Judge. Before dividing the oranges the judge did not take the time to ask the ladies why they were fighting over the oranges. It turns out that one of the ladies wanted the  oranges to make juice and one lady wanted the rinds and pulp of the oranges to make a pie. Had the judge simply asked each of the ladies what their goals, interests and concerns were, he would have quickly been able to arrive at a solution where both ladies were totally satisfied.

While interest based negotiations are often a part of negotiations in the litigation process the collaborative law process embraces this concept as a core concept of the entire process. Many times by focusing on the differing interests and concerns of the parties a "win/win" resolution can be more easily discovered than by focusing on what a court will or will not do with a certain set of facts.

L. The Collaborative Law Process Has More Solution Oriented Tools and Processes for Children's Issues

In the litigation process when mental health professionals work with the parties or their children in either a therapeutic or forensic capacity they are likely to be called as a witness for or against one of the parties if the case ends up being tried. This can often interfere with therapy or problem solving because the parties may be more focused on painting the other side as bad or themselves as good rather than focusing on finding solutions to their children's problems. In a litigation environment establishing who is to blame for problems is often the central focus of a dispute.

In the collaborative law process the focus in not on establishing blame - the focus is on solving problems. Because neutral child experts in the collaborative law process cannot be called to testify for or against anybody, the parties and the therapist are better able to focus on problem solving instead of fault finding. The role of a therapist working with children's issues in a collaborative case is not to function as a judge but to function as a facilitator.

The problem solving orientation of the collaborative law process is often especially helpful where children are concerned. In the litigation process because the parties are never more than a few days away from a possible courthouse confrontation they have to be constantly concerned on some level about how they are going to attack their opponent and defend themselves. This blame oriented mentality is often tremendously distracting from trying to find solutions for children in distress.

M. The Collaborative Law Process Sets Up a Better Negotiating Table

In the collaborative law process the accepted and encouraged way of doing business is for all of the parties and any team members to be present for all settlement discussions. This allows the attorneys to communicate directly with the other party. This direct form of communication allows the lawyers to learn from and communicate directly with the decision maker instead of having to use the other party's lawyer as a conduit.

In the litigation process face to face settlement negotiations are more likely the exception rather than the rule. The tendency is to conduct either caucus style mediations or settlement meetings that keep the parties and/or their lawyers separated from each other.

For a negotiator, there is no better substitute for getting direct access to the party you are negotiating with. With direct access you can more effectively advocate your client's objectives and interests and you can more accurately understand the interests and objections of the other party

N. In the Collaborative Law Process the Parties are in Control of the Dispute, Not the Lawyers, and There is Less Risk  of a Fight Between the Lawyers Overshadowing the Fight Between the Parties

In the collaborative law process the parties by design are put in ultimate control of the negotiation process. In the litigation process the court's imposition of litigation oriented deadlines may by necessity create situations where the parties lose control of the negotiations and the lawyers are forced to make decisions which may limit or diminish the control of the parties over their dispute. For instance, a lawyer running up against a discovery deadline may insist on taking a controversial deposition for trial even though that deposition may destroy or diminish certain settlement opportunities.

Additionally in the litigation process the lawyers are more likely to get in a disagreement with the other lawyer that gets dealt with by bombarding that lawyer and his or her client with discovery requests, temporary hearings or procedural motions. In such a situation the parties may feel and be trapped in a dispute that is more between their warring lawyers than it is between the parties themselves.

O. The Collaborative Law Process Is More Private than the Litigation Process

Because there are no court hearings, depositions or document requests to third parties in the collaborative law process there is a better chance the parties' dispute will stay private and confidential. Privacy is a huge concern of many clients and the confidentiality provisions of the collaborative law participation agreement and the private nature of the process itself help the parties better achieve the privacy they often desire.

P. The "Team" Approach to the Collaborative Law Process is Better Engineered for Dispute Resolution

Many collaborative law attorneys encourage their clients to use the "team" approach to the collaborative law process. Under the team approach a neutral mental health professional serves as a "communications facilitator" and a neutral financial professional serves as a neutral financial expert for the case. Using these neutral professionals provides the negotiating process with a neutral voice and perspective throughout the process. The presence of a neutral voice in the process often helps avoid or resolve impasses and helps redirect and diffuse conflict away from the parties involved and at the problem in dispute.

The usual role of the neutral mental health professional is to manage the emotional issues of the case, keep the parties and lawyers communicating constructively and the help the parties work through issues involving their children or other emotionally charged situations.

The usual role of the neutral financial expert is to gather, analyze and explain financial information, prepare inventories, prepare spreadsheets, assist the parties in evaluating the short and long term financial effects of settlement proposals and help in generating financial solutions. Sometimes financial information that has been prepared by a neutral financial expert will be more easily accepted or trusted because the information is coming from a neutral instead on one of the parties or their lawyers.

Because these professionals are neutrals they provide the negotiating process with a neutral voice throughout the process. Many times a solution can be seen or suggested by a neutral that cannot be seen by the parties who are engrossed in their own perspectives. Additionally, sometimes a suggestion for resolving the dispute can be more easily heard by the parties when it comes from a neutral voice rather than one of the parties or their lawyers.

Having neutral professionals in the middle of the parties' dispute as part of the collaborative process gives conflict somewhere to go. Having neutral professionals involved throughout the process is somewhat like having a mediator involved throughout the settlement process instead of just towards the end of that process. A neutral can serve a role as a "referee" and also can suggest compromises or options that consider the concerns of both parties from a disinterested perspective.

II.   CONCLUSION

The collaborative law process is not appropriate for all cases and certainly is not a perfect or fool proof process. However, for parties who have both real conflict and a desire to settle their differences without going to court, the collaborative process in many cases will be better able than the litigation process to increase the chances that their dispute will be resolved in an acceptable way without having to endure the difficulties encountered when family members litigate against each other in open court.

Parties in disputes often feel intimidated, fearful, anxious, powerless, out gunned, and not in control.

Process often focused on assigning blame or fault for problems.

Unpredictable and impersonal results.

May get results that you do not want or agree with.

Parties can feel unsafe - subject to cross examination, subpoenas and depositions.

Public.

Inconvenient scheduling - court and other side may determine the parties' schedules.

Filtered process - information often exchanged subject to discovery rules and lawyer/party discretion. Often negotiate indirectly through lawyers.

Much time, money and energy can be spent getting ready for a trial that most likely will never occur. 99.5% of cases settle but 99.5% of legal fees are not spent on settlement efforts.

Legal expenses are not all within your control. Other side can force you to spend money on depositions, discovery and hearings that you do not want.

Cannot just "try" Litigation

Can try collaboration - if it does not work either party can still litigate.

The above article was written by Kevin Fuler Esquire of Texas, it has been modified in some respects to conform to New Jersey practice.