In The News

Judges Endorse Collaborative Process in Divorce Cases

1/31/2008

vMany people who are faced with divorce, or with continuing disputes with their former spouse after divorce, experience as much anxiety from the adversarial nature of the traditional court proceeding as from the uncertainty of their situation. Asking and allowing complete strangers to make decisions about the most important aspects of our lives - our children, financial security and property - should not be the first choice in resolving family disputes.

Collaborative law provides an opportunity for families to participate directly in a thoughtful, deliberate and focused process to reach a negotiated agreement that meets the legitimate goals of both parties. In the collaborative law process, the parties agree ahead of time that they will not use the courts to force the hand of the other party. They agree to jointly use collateral advisers as necessitated by their particular situation: neutral valuation experts, a financial adviser, a child specialist and divorce coaches. Each lawyer in the process remains an advocate for his or her client, but does so after training in the collaborative process, along with a commitment to keep the process honest, respectful and productive on both sides. Both lawyers agree ahead of time that if the collaborative process terminates, they are disqualified from further representation of the parties. Participating in a collaborative process to resolve family or marital issues is transforming for both clients and lawyers.

The traditional process of placing all of the negotiation power and responsibility on the lawyers is dynamically changed by having all negotiation conducted at meetings where both clients and lawyers are involved in joint problem-solving in an open and goal-oriented manner. Judge David G. Sacks, probate and family court judge in Hampden County for more than 20 years, has seen significant change in the family court from his seat on the bench, but his admonition to those who appear before him on contested matters has remained the same: "This is the last chance you have to control your own destiny." Sacks strongly believes that the parties themselves can do a better job in writing the script for their future than he can. Judge Gail S. Perlman, probate and family court judge in Hampshire County, has observed that over the last two to three decades the legal system has come to see that the traditional way of solving problems in the courts is not the best way for families to solve their problems. "The traditional legal system is a legal necessity but not the tool of choice. Mediation and collaborative law often serve families better, and I welcome that," she said. Both Sacks and Perlman have taken notice that, in general, the parties who successfully participate in a collaborative divorce appear to have benefited from working productively in a process that assisted them in reaching an agreement without the time, expense and emotional turmoil of traditional litigation.

In particular, cases involving children require some urgency in establishing stability, and collaborative law provides an opportunity to jointly engage a child specialist to ensure that the children's needs are addressed. "Any tool that helps families maintain ways of being parent partners post-divorce is positive," Perlman said. Perlman has made some inquiries of parties who present a separation agreement after participating in a collaborative divorce process. She asks if the parties are satisfied with the collaborative process and has found that they are uniformly positive about it. "I have noticed a difference in the way the parties present themselves. I see two people who are comfortable, who have used the process to establish open communication," she said. Sacks sees the collaborative law movement as one of the many positive changes taking place in the family court. "The process of litigation is not a panacea," he said. Sacks has found that alternative dispute resolution, including collaborative law, can provide more predictable results and can be more economical for families. Collaborative law can assist families in writing their own script for the future. The collaborative process is a meaningful way to provide families with a real opportunity to control their own destiny. This article was written by attorney Carla W. Newton, of Robinson, Donovan, Springfield, for the Western Massachusetts Collaborative Law Practice Group.

For more information, go online to www.massclc.org ©2007 The Republican © 2007 MassLive.com All Rights Reserved.

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