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Collaborative Law and Counseling: A "Win/Win" Alternative to Costly Litigation by Kevin Boileau, Ph.D., J.D., LL.M. Most people know that litigation is adversarial, painful, and exhausting, both emotionally and financially. Costs and attorney fees often increase substantially due to an escalation of conflict that manifests itself in unnecessary court appearances, delays in communication, and posturing about trivial issues. At the end of this win-lose process, it is unlikely that the parties can continue any sort of friendly or constructive relationship. Nowhere are these consequences more dramatic than in family law, in which issues surrounding money and custody of children often rise to a feverish pitch. Here, the role of a divorce lawyer is to obtain as much money and time with children for his or her client as possible. In this non-integrative process there is little regard for the ongoing health of the family as a whole, and future co-parenting arrangements have a difficult chance for a positive outcome. A new, collaborative process for divorcing couples is now available in the State of Washington. In collaborative family law, members of a couple agree that they will work cooperatively to reach a settlement regarding residential and timesharing issues with their children, and financial issues affecting both parties in a way that meets the needs of all family members. There are three primary agreements that are normally made. First, the parties and the lawyers each agree in writing that they will not go to court to settle their issues. In the event the parties do not succeed in settling their differences without going to court, the lawyers must both withdraw. This creates an incentive for everyone to reach agreements. The parties and the lawyers each agree to work together as a team to reach a fair settlement. The collaborative lawyers act as legal advisors and problem-solvers rather than as adversaries. Second, the parties agree in writing to a full and transparent exchange of all relevant information. Any violation of this expectation can result in a negation of any formal agreements that are reached. Finally, the parties agree to work toward a final solution that takes into account the highest priorities and values of their family rather limiting outcomes to a power struggle over money and time. Here, there is an implicit recognition that even after divorce, members of a couple may still co-parent and work together for many years to come. In a collaborative law case the parties meet with their lawyers in a series of four-way settlement conferences. Each party has the advice of a divorce lawyer who is specially trained in the practice of collaborative law and experienced in family law. The parties may also agree to utilize the services of allied professionals, including mental health professionals specializing in child related or divorce issues and financial advisors. These professionals are jointly chosen to provide input rather than to take sides. In this sort of process, mutual respect is paramount. With the pledge to collaborate, spouses keep control of their decisions rather than assigning them to a judge; solving problems with mutuality and care is the main goal. By providing for face-to-face meetings, there can be an open expression of needs, expectations, and information rather than posturing to win. Finally, because the goal is peaceful conflict resolution and mutual agreement, family members have the best possible chance to move forward with their lives. What is most helpful in maintaining a safe structure for divorcing couples is a team approach that helps move a divorcing couple toward a transformed family, in which two parents divorce but also maintain and strengthen their ability to co-parent their children for years to come. In this team approach, the two collaborative lawyers, a financial specialist, perhaps a parenting specialist, and a mental health counselor all work together to create conditions for the best possible outcome for both parties. In this system, a mental health counselor can act as a facilitator and work with a couple directly in their meetings with the lawyers. It is also possible that instead of a counselor acting as a facilitator in the meetings with the lawyers, a counselor could see either or both members of the couple in psychotherapy/counseling. This could include short-term or long-term couples counseling, the goal of which would be to create peaceful and cooperative conditions for resolution and an ongoing productive relationship. Sometimes couples that are contemplating a divorce may actually start a collaborative divorce process in a counselor's office. In this case, a couple can actually begin to work through difficult feelings associated with financial and parenting issues before they contact lawyers. Occasionally couples reconcile, but even if they do not, their commitment to work through their conflict issues with the help of a trained counselor can lead to productive and beneficial consequences for all family members, especially children. Finally, the principles and methodologies of collaborative family law can also be applied to other sorts of legal disputes, including elder law, probate, and civil/business litigation. At a very minimum, it is always reasonable to consider a collaborative approach instead of going to court. Kevin Boileau, Ph.D., J.D., is a mental health counselor with offices in Seattle and in Mercer Island. His practice focuses on couples counseling, individual counseling especially as it relates to relationships, and the collaborative law context with which he is actively involved. |
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