Black and White Program

The Growing Trend of Collaborative Law

March 6th, 2009 by John Eastman

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The practice of collaborative law offers plaintiffs and defendants in legal disputes a structured process of settling their differences– an alternative to court processes that can often become costly and emotionally draining. The practice enables couples seeking separation and divorce to focus on family issues that will benefit their children by establishing a cooperative environment, as opposed to litigation. Black and White talks to Susan DiGirolamo, a collaborative law practitioner in Pennsylvania, about the quickly growing trend. DiGirolamo has been practicing law for 15 years. Her collaborative law practice is nearly two years old.

So describe for me what collaborative law is and how it is different from standard litigation?
DiGIROLAMO: Collaborative law begins with the parties signing an agreement that says that they will not litigate their case. The reason for that is that it is an alternative dispute resolution process and the practitioners want to make sure that the people involved are committed to the process. If the process breaks down and they would be free to litigate, it would tend to undermine the process and have them not be as motivated as they need be.

So, both parties go into it with the idea that they are not going to litigate, and both lawyers are collaborative law attorneys.
DiGIROLAMO: We are, and we are bound by the same agreement and part of that is that if the process breaks down and one of the parties decides to litigate, both attorneys must withdraw from the case.

And when they decided to do this, this is something then that both parties find their own collaborative lawyer?
DiGIROLAMO: What normally happens is a person will come in and approach me about a divorce case. I will suggest collaborative law if it is appropriate for them. If their spouse does not have an attorney yet I will give them a list of the attorneys who are in my particular practice group. There are 32 attorneys in Pittsburgh who are collaborative lawyers and they are all trained in collaborative law and I simply give that list to my client and my client gives it to their spouse. There is a website they can also use that has the same information on it, and they are free to choose anyone on the list.

Tell me about how collaborative law got started. Where did it originate– in the U.S.? How long ago, and by whom?
DiGIROLAMO: Yes, it was started by an attorney named Stu Webb and he practiced in Minneapolis, Minnesota. He had been practicing traditional family law—litigation– for 18 years and was tired of the process. He thought that the litigation process was not the best method by which to settle these kind of issues and therefore he decided that he was not going to litigate anymore. At some point he realized that he couldn’t do it alone, he needed other attorneys who had the same philosophy…

Another collaborative lawyer…
DiGIROLAMO: Exactly, so they could resolve the cases together, and he met shortly thereafter with another attorney, from California this time, her name was Colleen Kessler, she had the same kind of idea. They got together and developed what we now use as the framework for the process.

So, why is this good? Why is it effective? Why does it work? Does it work?
DiGIROLAMO: It does work. The statistics we have are that about 85% of the cases we get in the collaborative process are settled by agreement. In my opinion, the most important reason why it works is that it allows people to go through the process of deciding the issues that need to be decided in a way that allows them to express their needs. Sometimes, some of their emotional needs can be met through the process. It’s not therapy, but they get to express themselves in a way that never happens in litigation. And, it is a very effective method because of the two attorneys who are there are very skilled and very experienced in family law, guiding them through the process and helping them to come to their own conclusions.

Let’s take for example, when you go to litigation, immediately the two parties are set against one other as combatants, basically. Everything that one person gives up the other person gets and vice-versa. It’s kind of like it’s a pie and you cut it into pieces. In collaborative law we don’t see it that way, We can make the pie, in effect, bigger, and we try to meet everyone’s needs the best that we can, and we allow them to decide what those needs are. Secondly, the parties have control over not only the process, but the outcome, and that’s something that they never would get in litigation. For example, if you have two busy business people, I have several clients like this, in collaborative law, they set the schedule. We schedule our meetings based on their preferences. It’s not handed down by the court. That’s just a simple example of something that really reduces the stress on the participants. And then, of course, we can’t force them to agree to anything, so, unlike the court, they have to come up with their own ideas and their own solutions to their problems. So, at the end of the day we find that they are much more satisfied with the outcome than they would be if they litigated the case.

So, take a room with two attorneys and two individuals, how is that room different in terms of standard litigation, negotiation, versus collaborative law?
DiGIROLAMO: First of all, while it is possible to have what we call a four way meeting in the traditional litigation case this very rarely happens because we don’t have the same kinds of protections with respect to discussions remaining confidential. In the collaborative law process we have an agreement in the beginning that everything that is discussed is confidential. Also, we have transparency in collaborative law. In other words, both parties are obligated to give all of the information and not hold anything back. And that’s one of the major differences you would see. All the financial information, all of the information, is brought forth very quickly at the beginning the process. In litigation, people often try to hide things for a number of reasons.

Just the setting is, instead of it being in an arena where you have a fight, it’s more of a roundtable discussion where we have the same goals… we set the same goals in the beginning… which are normally to maintain the relationship for the children, if you have children involved, having a successful parenting situation moving forward after the divorce happens, and even when you don’t have children, trying to maintain a respectful relationship after the divorce occurs.

There’s an assumption that everyone is for the common good.
DiGIROLAMO: It’s not an assumption, it’s a commitment. It’s an important difference.

In the litigation situation where people are, maybe as you said, not as forthcoming about financial information. How do you know that? How do you know whether someone has been forthcoming in the collaborative law proceedings?
DiGIROLAMO: Well, let’s reverse the question just a little bit and say that in the litigation system there is quite a bit of cat and mouse in terms of getting information. There are ways that you can use in discovery, you can send interrogatories, you can depose the parties, you might depose their accountants, look at their tax records, but there are always things that one party might want to hide from the other. In the collaborative process, we try to bring forward all of the relevant information as quickly as possible to begin. If one of the parties is at all suspicious that the other person is not forthcoming, than we can bring experts in, and we do at times, to look over all the records, to talk to them. I suppose at one point if those questions cannot be answered to the satisfaction of the person who has the questions, then that would possibly result in the process breaking down. I haven’t experienced that. I’ve had some fairly complex financial situations in some of my cases and we were always able to get as much information as we felt we needed and we were satisfied that nothing was being held back.

In your experience so far in your practice, does the collaborative law process produce a faster end result?
DiGIROLAMO: Much faster. The only way that it could possibly be shorter in litigation would be if the people came to an agreement immediately and just signed the papers and got divorced. Normally, if it’s a complex case with issues that need to be resolved, it could take two, or even three, years to resolve those cases. The cases that we do in collaborative law normally, and there is no rule, the timing is set by the parties themselves, but normally six months to a year. It is usually significantly less than a year.

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