I just had, yet, another client come to my office, stone-faced, distraught and deeply hurt. This client had just finished reading the affidavit filed by their spouse of numerous years. All of the terrible, untrue allegations the affidavit held ripped at my client’s inner being as a person, parent and spouse. The spouse that my client was devoted to, shared the most intimate secrets with and trusted to not divulge, painted my client in an affidavit as a mentally disturbed person unfit to parent their child. When my client confronted the spouse about the affidavit, the spouse openly admitted that most of it was untrue or inflated. My client then had to respond to this affidavit, trying to resist the temptation to drag up their spouse’s affair during the relationship.
I tell my family law clients that the emotions that they and their children are going to experience as a result of a separation or divorce are likely worse than the emotions experienced after the death of a loved one. At least when someone dies, they did not choose to leave you and they cannot keep attacking you from the grave. The exchange of affidavits in a family law matter is usually where the conflict between the parties begins to escalate. Prior to or after the application the lawyers have usually tried to negotiate some type of settlement, at least on interim matters. Sometimes the contents of the affidavits make this difficult. Despite the best efforts of counsel, the mud slinging begins or is intensified. The affidavit is the product of the client’s information which the lawyer then uses in an attempt to portray in the best light for their client. The obvious result is to cause the other spouse to be described negatively. Once your client reads the opposing spouse’s affidavit their emotions boil over and they are in your office promptly to retaliate. The conflict and bitterness are escalated with this exchange of affidavits and then the matter is handed to a judge to resolve. This is often the current state of the family law litigation system, whose purpose is to assist families with the issues that arise as a result of their separation.
Even if court documents are not filed in a family law matter and the lawyers are successful in negotiating a settlement for the parties, there are still other drawbacks. It is usually a lengthy procedure where the clients are only passively involved in the process. The process begins with each side taking positions and working their way to the middle. It is usually a letter-writing exchange back and forth deeming lawyers the title of “pencil pushers”. All the while the threat of court processes looms over each parties’ head.
This is one of the main reasons I originally obtained my certification to practice collaborative process: to give my clients an alternative to this court-based system. I have experience dealing with the traditional methods of family law settlements/court processes and collaborative processes. I have witnessed many benefits of collaborative practice over the traditional lawyer-negotiating and court processes.
The most fundamental difference that I have observed is the way in which trust and respect is rebuilt between the parties during the collaborative process. Many of my collaborative clients, although still separated, get together for coffee to discuss issues involving their children and jointly attend their children’s activities. This result is achieved because the parties sat down together in a professional atmosphere and heard each other’s needs and concerns rather than each other’s positions. They voiced thoughts and feelings to their partner that they had been unable to express prior to that time. The other spouse acknowledged these needs and concerns as valid and both agreed to deal with these in any future agreements that they made. Additionally, during the process the parties make small agreements at each meeting. When both parties live up to their obligations, they begin to trust the other. As a result of parties’ participation in the collaboration process, they gain more confidence that the agreement is going to be complied with in the future by the other. This is contrary to my non-collaborative clients that are always concerned about enforcing spousal and child support provisions through maintenance enforcement after the agreement is signed.
The next difference between the litigation process and collaborative process is the ease with which document production takes place when compared to traditional methods. The parties produce and exchange documents without regard to relevance. By the second or third meeting each party usually has all of the information required to begin looking at their options. In collaborative the parties ate not as concerned with disclosure as are the lawyers and they were satisfied with rough estimates of property values. It is always uplifting to see the other party in the collaborative process on the cell phone to his bank asking for the balance of his business account and providing it to us within minutes of my client asking. Lastly, there was no need to retain copies of all the documents and the collaborative process makes for a much lighter file.
Typically, when I am newly retained on a traditional family law file, I inform my clients not to expect results in a hurry. We may be able to get interim relief promptly, but the final determination of all matters may take two years or more. The expression I use regularly is “if two years from the day of your first office attendance with me, you and your spouse have settled everything and all your family law matters are wrapped up and neatly tied with a bow, you will have done well.” In a collaborative setting a settlement on all issues can usually be achieved after only four to six meetings spanning about four to six months. The shortest collaborative file I have had was resolved in two meetings or about two – three months and the longest one was two years (a very complicated business to divide). The collaborative clients are empowered because they are in control of the timeline rather than the lawyers or courts.
Consequently, I encourage all my new family law clients to attempt the collaborative process. I have aspirations of someday having an exclusive collaborative family law practice. Looking at the advantages that I have noted, the collaborative process is an ideal fit to resolve family law matters. It tends to reduce emotions dictating actions and can swiftly bring a family back from the rubble that a separation can cause. It can also equip them with tools to assist them with the family changes brought on by a separation to rebuild trust rather than leaving them in their mucky pit of despair with the only option of continuing to use mud as their tool/weapon of choice.