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Collaborative law and family

16 Sep 2022 / Family law Print

We are family

Lawyers Muriel Wall and Pauline Tesler are evangelists for collaborative law, and believe that the model offers less prospect of long-term damage to the children and parents involved in family break-up. Mary Hallissey reports.

“Fully-litigated settlements in family separation and divorce matters are the least desirable way for a family to resolve their issues,” says California-based lawyer Pauline Tesler, who is a strong believer in a collaborative model of justice in family law.

“I think we can fairly say that all litigated divorces are done poorly,” she adds. “It’s like the emergency room in the intensive care unit. You’ve got to have it, it must be good, and you can’t live without it. But you don’t want to start there,” she says.

Tesler believes that the collaborative model offers a higher goal, and less prospect of long-term damage to the children involved.

Dublin-based collaborative law practitioner Muriel Walls agrees, saying that the model offers a far less ‘bludgeoning’ approach, because it is a process that aims to avoid harm to children, families, and important friendships.

Different approach

The ‘collaborative divorce’ approach starts quite differently from adversarial advocacy, which frames the entire matter as a zero-sum game, taking an oppositional win/lose stance on each possible point.

In court-settled proceedings, because nobody emerges with their real concerns addressed in a way that feels just and fair, there are often repeated modifications motions for as long as the issue remains alive, says Wall.

In contrast, a successful collaboration leaves both spouses content with what they’ve agreed, because they know all their concerns have been respected and the resulting compromises are reasonable and ‘good enough’.

This is how collaborative divorce settlements avoid the revolving door of court-settled resolutions, with all the attendant financial costs and emotional damage.

On the one hand, the original negotiated settlement is not revisited, because both find it satisfactory – in sharp contrast to court-based orders and settlements that made everyone unhappy from the start, says Tesler.

And, as life goes on and changes arise that affect children or supported spouses, these are treated as normal reasons to return to collaboration for creative problem-solving, rather than as a cause for arguments and a return to court.

What this means is that the collaborative model takes the divorce judgment, not as the end of the lawyer’s work, but as the beginning of a very challenging period when clients begin the actual recovery from the divorce.

Profound changes

“The 18 to 24 months after entry of judgment is when the most profound changes start to take place. The money has now been divided, separate households are set up, maybe somebody must move for work-related purposes, maybe there’s a blended family that results,” says Pauline.

That is why the model encourages people to consider child-related agreements as being tentative working drafts, since flexibility is a quintessential necessity for children.

The lawyers and other professionals who work together in the collaborative divorce model remain available to their clients during that period of rapid change.

This is one of the most powerful advantages for clients in working collaboratively, because for reasons of judicial economy, a court will generally require a significant change of circumstances before it will even permit a hearing to modify orders about children or support.

That requirement does prevent excessive overuse of court resources, says Pauline, but it acts as a barrier to getting much-needed help when children and families encounter predictable changes and challenges after the divorce judgment has been entered.

Creative problem-solving

Another unique feature of collaborative divorce, Muriel Walls explains, is its emphasis on creative problem-solving, conducted face to face in discussions that include both sets of lawyers, both clients, and other professional helpers.

It’s difficult to hide behind fixed thinking in a model where ideas are shared quickly, and then immediately evaluated and improved by collective efforts. This is how novel solutions outside the capacity of court-based proceedings can be accomplished, says Muriel.

“What happens in the courtroom is based upon a minuscule
amount of information compared to what’s generated in these conversations about the welfare of children and families,” says Tesler. “A divorce is simply a financial separation – but with children, you’re bonded for life.”

The key asset here is relationships, both lawyers say.

“That’s always the values-based priority: that none of our work will damage the relationships that have to flourish after the divorce, so that everyone in the family system can recover and live a good life,” they add.

Collaborative practice

Collaborative practice, as an interdisciplinary team model, was developed in California after an initial beginning in the US Midwest. The teams include specially trained mental-health professionals and financial specialists (accountants, financial planners, and wealth managers) who work alongside the lawyers and participate in negotiations sessions, as well as working separately with each party.

The concept is based on an understanding of divorce as the collapse and restructuring of a family system. This needs a skilled system of professional helpers as a ‘container’ around it to help the spouses negotiate the challenges of separation and divorce, and reach resolution entirely outside the courts system.

This ‘container’ provides coordinated resources for the inevitable conflicts and challenges that occur during and after the formal divorce process.

Pauline has conducted several previous training sessions in this country, and there is a committed band of collaborative practitioners in Ireland already.

In the collaborative model, the professional team has sophisticated conflict-management tools at its disposal: “We are all going to work together to get through it constructively, with commitments designed-in at the front end on intentions, transparency, good faith, and behavioural guidelines.

“We assume that it’s going to be a rocky ride. We normalise it with clients and get a commitment from them to work in a systems-based way, educating them about the nature of their system collapse, and restructuring,” Pauline explains.

“Once people commit to that, they wish to self-regulate, because it’s embarrassing, as much as anything else, to fail. They have already failed in their own eyes in the most serious commitment that they’ve made to another human being – their marriage – and we’re giving them an opportunity to regain integrity as they move through the divorce.”

Pauline describes collaborative-divorce representation as meeting people at both their highest and lowest potential – and never knowing ‘who’ she will meet on any particular day. “The power of normalisation and of a ‘systems-based container’ cannot be overstated in dealing with the emotional rollercoaster that our clients are riding,” she explains.

How expensive?

Clients always ask whether collaborative divorce is expensive. Both Muriel and Pauline answer that the cost is always less than doing it in an adversarial manner.

Young couples on two incomes with few assets and no children might find mediation more economical than collaboration, provided that they can engage in respectful and rational discussions.

But even those couples may have challenging issues to work out, and collaboration always provides more structure and support for difficult conversations than either mediation or adversarial representation can offer.

There are some divorcing spouses who are so impaired or dysfunctional that they simply don’t have the capacity for the civility, honesty, and good-faith negotiations that are required for collaborative divorce.

“We try to screen those people out at the start,” says Pauline, “ but if they do become involved in a collaboration, it will be costly, because their need for professional help is so great and their ability to resolve their own issues is so small. However, for them, every other way of doing it is likely to be even costlier.”

Pauline views the population of divorcing couples as a bell curve, with about two-thirds of them falling within a normal range in terms of the frequency and intensity of the emotional upheavals involved and in terms of their ability to move from conflict to resolution when working with capable collaborative professionals. “We can work very effectively with these couples,” she says.

But if severely impaired outliers – the 5% of the divorcing population at the high-conflict end of the spectrum – slip through screening, it can’t help being a rougher ride.

“That’s because nobody can work effectively with these people,” Tesler adds.

Serious mental or emotional disorders or substance-abuse issues will thwart the efforts and tax the skills of any professionals involved. “In that situation, like everyone else, we do the best we can, but it’s fair to say that, unlike adversarial professionals, collaborative lawyers will at least never be guilty of fanning the flames of conflict,” says Pauline.

“But such clients, if we can identify them at the start, will probably do better with reasonable solicitors who trust one another and can engage in friendly traditional negotiations outside the presence of their clients. That’s an approach that doesn’t ask highly impaired clients for more than they can bring to the table.”

Muriel Walls agrees that one vital skill in collaborative law is effective screening of the clients. “I’m relying on my colleague on the other side to make sure their client is fully on board with the interdisciplinary collaborative model and the ‘financial neutral’. And you know, some people won’t sign up to that,” she adds.

“We’re not out to have everybody,” Pauline agrees, “but we have decades of experience to show that it does work, and there is solid research behind it.”

Voice of the child

Muriel and Pauline agree the that collaborative divorce model is unparalleled when it comes to issues relating to the parenting of children.

“I haven’t had a collaborative case in which irrational conflicts about the children persisted for more than the first conversation or two,” Pauline notes.

This is because the professional team in such cases ordinarily would include not only mental-health specialists who provide skilled coaching for the parents, but also a child specialist who acts solely as a specially trained conduit of the voice of the children in the process.

Without this method, Tesler believes, each parent in an inflamed custody dispute truly believes that they are the only thing standing between the children and some sort of post-divorce catastrophe at the hands of the other parent.

And lawyers in conventional practice often fan those flames because they see it as part of their job to get their client more time with the children at all costs, without realising the damage that approach typically causes.

Where there are collaborative coaches and a child specialist involved, each parent soon comes to understand the pain they are causing to their children from fighting about access to them.

That is when the parents are ready to learn, gradually, how much their children need a relationship with both parents, despite the imperfections both may have.

And that is when they are ready for help in working out a plan for shared parenting in the best interests of the children.

Challenging cases

In very challenging cases, the team will modify the process to get things done, because some participants need a great deal of help if they are to participate in a creative, respectful process and reach an outcome that considers the best interests of all members of the family system.

Muriel explains that, in such situations, the collaborative process can bring the mental-health coaches into the negotiating room, where they can help clients manage their emotional reactions, and thereby defuse escalating situations without the need for adjournments that are the only tool available to a traditional lawyer: “Having them in the process is really powerful,” she comments.

Pauline adds: “People who might otherwise end up in high-conflict litigation can actually rise to the occasion when we offer them these resources.”

In addition to coaches and the child specialist, the other member of the collaborative team is the ‘financial neutral’, who changes the financial-disclosure process from weaponising information into using it as a shared resource.

The commitment is to full disclosure by both parties on financial affairs. And the financial neutral is the one with the skills to gather documentation, analyse it, locate gaps, ask questions, consider tax matters, and explain the financial picture, so that everyone at the table understands it fully.

“It’s one of the things that distinguishes this from family mediation in my mind,” Tesler says.

Dawning realisation

Though mediation can be a very useful tool for high-functioning couples, even these can benefit where there are complex assets and income streams.

While collaborative lawyers have the same lawyerly ethical duty to assist their clients to the maximum extent possible, they don’t automatically assume that more of everything at all costs is the most important goal.

When lawyers train in collaboration, there is often a dawning realisation of the pain that high-conflict divorces cause, because of an unexamined approach to legal advocacy.

This isn’t just another arrow in the quiver for solicitors. When they really understand the power of the collaborative model to help clients achieve deep and durable resolution, it really transforms how family lawyers think about the job description and the purpose of our work,” says Pauline.

“I’m not exaggerating when I say it’s a conversion experience,” she concludes. “If you are powerfully convinced that this is the way we were meant to do family law, then you will take this idea and run with it – and nobody can stop you!”

The Association of Collaborative Practitioners will be running interdisciplinary training in collaborative law at the Ashling Hotel, Dublin 7, from Friday 16 to Saturday 17 September, from 10am to 5pm each day. To book, see https://acp.ie/training-events.

Read and print a PDF of this article here.

Mary Hallissey
Mary Hallissey is a journalist at Gazette.ie