Gini Nelson\’s Engaging Conflicts

March 6, 2007

Collaborative Law Established, Cooperative Law Now Growing —

Filed under: Uncategorized — Gini @ 6:08 am

blue record diskTHE GROWING TREND OF COLLABORATIVE LAW: “Not for all, but a growing trend, and here to stay.”

So I said when I published my first article on collaborative law in the Los Alamos Monitor in July 2002. Indeed, it has continued to grow, and, from it, Cooperative Law, both topics in Engaging Conflicts, with leading Guest Bloggers starting soon. I posted earlier about John Lande’s work in Cooperative Law — John is one of the upcoming Guest Bloggers — but some people would like a basic introduction to Collaborative Law concepts as part of learning more about Cooperative Law. Thus, I’m republishing my article.

Collaborative Law is a form of lawyering that is, to some degree, a hybrid of an unbundled practice approach that uses a mediative negotiation style. It seeks to integrate non-adversarial and cooperative strategies, and relies heavily on the empowerment of the clients as informed decision-makers.

Lawyers who commit to being collaborative lawyers agree that they will never go to court in a particular case if settlement negotiations fail; and they meet in four-way meetings in which the clients are empowered to play a major role.

The clients themselves may conduct the settlement negotiations, with their lawyers there to assure there is also legal protection. Thus, collaborative family practice, where it is established, can become the third primary dispute resolution option for families in divorce and/or separation, together with mediation and litigation.

Like mediation, it isn’t the best choice for everyone, but, also like mediation, it can be well worth considering if some or all of the following are true for both parties:

a. You want a civilized, respectful resolution of the issues.

b. You would like to keep open the possibility of friendship with your partner down the road.

c. You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.

d. You want to protect your children from the harm associated with litigated dispute-resolution between parents.

e. You and your partner have a circle of friends and extended family in common that you both want to remain connected to.

f. You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.

g. You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.

h. You value control and autonomous decisionmaking and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).

i. You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.

j. You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.

k. You understand that conflict resolution with integrity involves achieving not only your own goals but finding a way to achieve the reasonable goals of the other person.

Pauline H. Teschler, Esq., Collaborative Law FAQs, [from a site available in 2002, but no longer available. Note: Ms. Teschler, a pioneer in speaking, writing and training in this area, published Collaborative Law, in 2001, and, in 2006, Collaborative Divorce, with Peggy Thompson].

It is different from mediation, in that the mediator is neutral, and cannot advise one side or advocate for one side over the other. While parties in mediation may have attorneys, the attorneys are seldom at the mediation sessions. In a collaborative law process, each party has their own attorney, at their side, to advise them and advocate for them, if necessary, throughout.

Not for all, but a growing trend, and here to stay.

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