WHY IS IT SO IMPORTANT TO SIGN A COLLABORATIVE FAMILY LAW PARTICIPATION AGREEMENT, AND TO USE ONLY LAWYERS WITH SPECIAL COLLABORATIVE SKILLS TRAINING? WHAT ABOUT LAWYERS WHO SAY THEY WILL WORK 'COLLABORATIVELY" WITHOUT A SIGNED AGREEMENT, BUT HAVE NOT COMPLETED COLLABORATIVE SKILLS TRAINING?
There is a huge difference between a settlement negotiated during, or under the threat of potential, litigation, and a settlement negotiated in an atmosphere where the parties are free from the inevitable fears and anxieties that are the natural consequences of, or the threat of potential, adversarial litigation. The most important factor that dictates which direction any case will take is the nature of the skills that the lawyers for both parties have acquired through their formal training and experiences. Spouses who try to engage in a Collaborative Family Law Process when one or both of their lawyers have not completed any of the basic training courses that teach the necessary skills involved in representing clients in collaborative conflict resolution run a much higher risk of process failure, compared to those spouses who choose trained Collaborative Family Lawyers to represent them.
All members of the Central Ohio Academy of Collaborative Divorce Professionals are required to complete certain types of these special skill building training courses before they can participate on any team cases. All types of members must complete 12 hours of Basic Mediation Training and 12 hours of Basic Interdisciplinary Team Training on how to work together to give the parties and their children the most appropriate type of support services. In addition, all lawyer members must complete 12 hours of Basic Collaborative Family Law Training. Experience has demonstrated that most lawyers, financial experts and mental health professionals who have not completed these minimum training requirements do not really understand how to go about the task of helping a divorcing family navigate effectively through the Collaborative Family Law Process in order to obtain the best plan for restructuring their financial and parenting relationships, while being able to maintain their personal dignity and self- respect throughout the process.
It is true that nearly 90% of all contested divorce cases end up as settled, uncontested divorces, without any actual trial - but, most often not until both parties have invested 12 to 24 months, or more, of time and family emotional upheaval, plus many thousands of dollars in professional fees to prepare for a trial that will never take place. In addition, a large percentage of marriages are terminated through the dissolution of marriage process, which involves the negotiation of a complete settlement on the terms of the division of marital property and spousal support, and the allocation of parental responsibilities and child support, when minor children are involved, before any documents are filed in a court. However, those negotiations are conducted under the continuing stressful threat that, at the whim of either party, the case may be escalated into adversarial litigation by the unilateral filing of a complaint for divorce. In addition, all such negotiations are motivated by a basic "win-lose" philosophy that fails to address the true future interests and goals of all of the family members. Consequently, although these cases are settled without a trial, more frequently than not, both spouses leave the marriage with a high degree of resentment, unresolved anger and "buyer's remorse" or "seller's remorse." The other "collateral damage" to the children, which results from their exposure to parental conflict over an extended period of time, may not show up in their development for several years.
In 1990, the concept of Collaborative Family Law was created by some family lawyers in Minneapolis, and it has spread rapidly throughout the United States, Canada and many other foreign countries. In contrast to the traditional "win-lose" philosophy of litigation, as described in the preceding paragraph, negotiations in the Collaborative Family Law Process are based on a "win-win" philosophy that focuses on attempting to discover the future interests and goals of all family members, and to create a customized plan that comes as close as possible to meeting those needs of all family members.
In 2013, the Ohio Collaborative Family Law Act became effective, and it provided official recognition and public acceptance for the Collaborative Family Law Process as an available option for restructuring the financial and parental responsibilities of a divorcing family. One of the most important features of this process is the requirement that the parties sign a Collaborative Family Law Participation Agreement which contains mutual promises by the parties that neither they nor their Collaborative Family Lawyers will threaten to go to court to resolve any dispute. However, if either party does make any such threats, the collaborative process is ended, both of their lawyers must withdraw immediately, and both parties must retain new lawyers to represent them in the litigation phase of their divorce process.
Consequently, the addition of Collaborative Family Law (or Collaborative Divorce) as an option for restructuring a family going through divorce has had a major impact on the types of skills a lawyer needs to master in order to become an effective and competent Collaborative Family Lawyer. Notably these skills are very different from the traditional skills almost all lawyers have learned in law school and most continuing legal education courses to date.
Historically, the primary emphasis in the formal education and continued training of lawyers has been on developing competitive skills in adversarial "win-lose" results from negotiations and/or litigation that focus on maximizing gain and avoiding loss for clients. Lawyers have been taught to treat most new clients as potential parties to future litigation as the standard form of dispute resolution, so they start thinking about preparing the client for future litigation to maximize the potential benefit for their client. Initially, they do not think in terms of what it might take to satisfy the interests and goals of all parties that may be involved in the potential disputes. In other words, most lawyers who have not had the benefit of special training courses that develop skills in collaborative practice techniques view litigation as the primary approach to dispute resolution.
In contrast, when a new client walks into the office of a Collaborative Family Lawyer, the lawyer's first thought is how best to help prepare the client for settlement negotiations and to exercise maximum control over the final terms of settlement. Litigation becomes the last possible option for dispute resolution. Furthermore, this lawyer knows that the Collaborative Family Lawyer for the other spouse will have exactly the same focus, because they have a common goal of helping their clients find common ground on a number of difficult subjects - otherwise, if they fail they both lose their jobs. So, instead of trying to intimidate, embarrass, trick or insult the other lawyer, both lawyers must demonstrate skills that foster creative team work, while at the same time they are acting as advocates for their respective clients. Obviously, they probably have not received any training in law school or most normal continuing legal education seminars on how to play these new roles.
In an effort to satisfy the needs of aspiring Collaborative Family Lawyers, a substantial number of groups of educators have created new types of training seminars that teach the types of skills and techniques these lawyers need to master to perform competent services for their clients. In addition, Collaborative Family Law involves the team concept of providing the parties with not only legal services, but also, the services of neutral financial experts, child specialists and divorce coaches to provide the parties with the support of a Collaborative Interdisciplinary Team of experts, so these allied professionals need to complete appropriate training as well.