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| Home > Divorce Q&A's: (sect-Starting a Divorce) > Collaborative Law | |||||
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Collaborative Law and Collaborative Divorce in IllinoisThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2008 "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough." Abraham Lincoln, Notes for a Law Lecture, 1850.
Q:What is a collaborative divorce?A: Collaborative Practice is a dispute resolution process where spouses and their attorneys work together cooperatively to negotiate equitable settlements without going to court. The focus is on constructive problem solving based upon the divorcing couples' individual and shared values rather than on adversarial bargaining and court imposed solutions. The goal of Collaborative Practice is to assist people choosing to end their marriage without destroying their family in the process. Collaborative Law, Collaborative Practice, Collaborative Process, and Collaborative Divorce are terms often used interchangeably. As used in my practice, the current and I think best term is “Collaborative Practice.” This is because in Collaborative Practice we can involve other professionals, take advantage of their specialties, and tailor the process to your particular needs.
Q:How does a collaborative practice differ from a traditional divorce?A:A collaborative divorce differs from a traditional divorce because in a collaborative divorce, there is not a financial incentive for a lawyer to go forward with contested issues. In fact, if the lawyer believes he or she must go forward with contested issues, each of the lawyers must ultimately withdraw from the client's representation. The parties in the collaborative divorce always retain their ability to go forward with contested proceedings court -- although this ends the collaborative divorce process and the lawyers must again withdraw from the representation.
Q:What's this I hear about a "coach?" I hear that in collaborative practice, you need a coach in addition to two lawyers. How does this work?A: In collaborative practice in Illinois, your choice is whether to use the services of one neutral coach or two coaches. There are pros and cons of using one coach or two coaches. A coach is significantly different from a counselor -- although the coach used in collaborative training will be a mental health professional. The coach or coaches will do do three things which are invaluable to both the clients and the lawyers involved: help the client discern his or her needs; help the client articulate his or her needs clearly; and help the client hear the other client's needs respectfully. The coach will also be trained in interest based negotiation and will help the couple learn how to utilize these techniques at the collaborative table for a more efficient process. In taking these steps the coach helps to build post-divorce environment that is healthy and productive for the individuals and their children. While counseling is often past-focused, coaching is present and future-oriented. Coaching is focused on accomplishing the tasks needed in order to best help a person focus upon cost-effective resolution of divorce.
Q:What other professionals are involved in a collaborative divorce?A:Collaborative practice involves a collaboration not only between the attorneys; but it is a collaboration which will bring all the professionals together. The core group of professionals in a collaborative divorce are lawyers, the coach(es), the financial consultant and potentially a child specialist. The goal is to bring together the best professionals so that a couple may take as much "ownership" of their own divorce as is possible.
Q:Explain the role of the child specialist.A: A child specialist is a member of the interdisciplinary team in a collaborative divorce process. During this process, the child specialist talks with the parents and meets with the child to assess the child's needs and concerns. The child specialist also assists the parents in recognizing and meeting the developmental needs of the child, while providing the child a voice in the divorce process. Unlike a custody evaluator, the child specialist does not make specific recommendations, but works with the coaches and the parents in helping to make informed decisions to help their child. See: www.collablawil.org
Q:How do you obtain the necessary information in a collaborative divorce?A: The participants to a collaborative divorce will complete a sworn comprehensive disclosure statement. In fact, this comprehensive disclosure statement is similar to the most comprehensive financial affidavits used in the collar counties. It is more expansive than the form used McHenry and Lake County and is somewhat similar to the comprehensive financial disclosure statement used in Kane County, DuPage County and Cook County, Illinois. In the traditional adversarial system, often a great deal of wasted attorney's fees is spent trying to force discovery issues. Lawyers refer to the legal steps that are taken as "201(k) letters, motions to compel, motions for sanctions," etc., that are avoided in a collaborative process. The collaborative process facilitates direct communication between the parties. In a traditional adversarial divorce, if there is non-compliance with discovery, then what will often occur is that one lawyer has his or her secretary generate a form letter -- referred to as a 201(k) letter – at a cost to the client. In collaborative practice, the communications and "homework" is done far more directly because the lawyer(s) or financial specialist, etc., will be able to request directly from each party the necessary information. One of the commitments in collaborative practice is that the participants agree to make full, honest and open disclosure of all relevant facts and circumstances.
Q:What are the negatives of the traditional adversarial divorce process?A: In a traditional adversarial divorce, one spouse files a suit the other for divorce (called dissolution of marriage in Illinois) and sets in motion a series of legal steps. These eventually result in a resolution achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children. Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
Q:What is the approach used to settle a traditional divorce case?A:In the standard divorce case, after discovery is exchanged, there will be a letter in which one party outlines the proposed principles of settlement. If this is rejected, in Illinois usually the parties will proceed to a “pretrial conference.” I use the term “settlement conference” because it is more descriptive. The parties will submit memos to the court which ideally are to be read by the judge before the pretrial conference. The court will then conduct a conference with only the lawyers and judge involved. The conference is in the judge's office (chambers) in which he or she will listen to the attorneys for a short period of time and then make a recommendation as to how the case should be settled.
Q:What is the downside of the approach used in a traditional divorce case?A:The downside is that because of the nature of the court system, I have found that even when a pretrial conference memo is provided to the judge days before the pretrial conference, many judges do not have the time to read the pretrial conference memo. Therefore, the judge will only have several minutes to consider the complexities of a couples' married life and then make a recommendation as to how their entire case should be settled. Each judge will bring his or her biases to the table in making this settlement recommendation. For example, many judges have their rules of thumb as to amounts of maintenance and many other issues. Sometimes these rules of thumb are fair and sometimes they are not. The bottom-line is that even in the best of circumstances the court will only have a very limited amount of time to give settlement recommendations. The settlement recommendations are not based upon the individual and shared values of the couple that is divorcing but often upon rules of thumb which are used to encourage predictability.
Q:What are the costs of a collaborative divorce?A:Every case is unique. Accordingly, it is impossible to predict with any accuracy the cost of divorce in a given case. Practitioners of collaborative divorce often indicate that collaborative divorce is a less expensive option as compared to traditional collaborative divorce. For example, in the leading book The Collaborative Way to Divorce the authors (Stuart Webb and Ronald Ousky) indicate in the subtitle collaborative divorce generally has lower costs. In 2007, the Boston Law Collaborative surveyed 199 cases as to their median costs. It found that the median settled divorce cost surveyed was indeed more expensive than the median cost for a collaborative divorce (with a savings of approximately $6,000 in those 199 cases surveyed). Of course, full scale litigation was more expensive than either settled traditional cases or collaborative cases by a factor or more than three to one.
Q:In a traditional divorce case, if I am in a county where the same judge would handle the settlement conference as the trial, isn't there an advantage to learning the judge's pretrial conference recommendations?A:In counties including the counties where I predominantly practice including McHenry County, Lake County and Kane County, Illinois, the same judge who handles the settlement conference will generally be the trial jude. Therefore, most clients believe that the judge will inevitably rule the same way at trial as the judge recommended at the pretrial conference. I have found that sometimes this is true and often it is not. The fact is that many times a court will decide differently once realizing that a short presentation at a settlement conference was not enough to give the judge a full flavor of all the facts and circumstances of the case. Nevertheless, the party who is perceived to have “won” at the pretrial conference often becomes inflexible in negotiating further believing that he or she surely has little to lose by taking a case to trial. The lack of flexibility in the party's positions following a settlement conference is another deficit of the tradition divorce settlement process.
Q:What is the approach used in a collaborative divorce to settle cases?A:The model used in collaborative divorce cases involves interest based or valued based negotiations. It provides the tools to couples to enhance their ability to communicate during the divorce process and forward. The earliest in this school of interest based negotiation is the book, “Getting to Yes.” Lawyers who use this method to negotiate divorce cases, do not try to emphasize positions but instead emphasize principles. In a traditional adversarial system, the focus is upon competing predictions about what the court is reasonably likely to do. However, the needs and interests of the divorcing couple are not the benchmark. Instead, the court's focus is upon maintaining predictable positions so that more and more couples will settle cases within this range of predictable positions. The goal in collaborative practice is to create scenarios in which the needs and interests of each participant in moving forward with their lives is better met. Collaborative professionals try to envision options for mutual gain rather than concentrate on bottom-line positions. In doing so, the lawyers and the parties engage in what is called interest based or value based discussions. Ideally in a collaborative divorce, the lack of positioning will save the parties funds in terms of the cost of litigation.
Q:If there is no pretrial conference in a collaborative divorce, how is a case settled?A:Rather than a pretrial conference, the lawyers will conduct four way conferences as a means of settling a case. In a collaborative divorce there can be one four way conference or often there are multiple conferences. A four way conference is a conference which is conducted after there has been disclosure of all the relevant information as a means of expediting a settlement in this case. In a four-way conference in a traditional divorce case, each lawyer and his client will sit on opposite sides of a table and discuss settlement. One collaborative lawyer put it this way, “I like to say that we put the issue we're working on in the center of the table, and we all focus on ways to resolve it--rather than seeing the other party as the problem and attacking him or her.” Ideally, there is an entirely different tone in a four way conference in a collaborative divorce case as opposed to the traditional divorce.
Q:What happens once the parties to a divorce case reach an agreement in a collaborative divorce?A:There is one court appearance in which the parties go to court to prove-up their divorce agreement, that is, the marital settlement agreement. In this manner, a collaborative divorce is exactly the same as a conventional divorce.
Q:What if an agreement can't be reached?A:If an agreement cannot ultimately be reached the lawyers for the parties withdraw, and the parties hire new lawyers to prepare the case for trial.
Q:Well, isn't there a down-side to a collaborative divorce if an agreement is not reached?A:If an agreement is not reached there is a certain amount of inefficiency that is involved. This is because the divorcing couple must start the divorce process over with traditional adversarial counsel. However, there is also inefficiency when a client chooses another lawyer during the pendency of a case. I find that changes of lawyers occur with much higher frequency in adversarial cases than in collaborative law cases. This is because of the nature of the adversarial system. Often a client will have spent thousands of dollars on a temporary hearing only to receive results which are less than optimal. It is at this stage that many clients seek a second opinion or seek to swap horses in mid-stream. Because of the tools available in interdisciplinary collaborative practice -- generally the divorcing couple does not need to resort to terminating the collaborative practice and starting over with new counsel.
Q:Does the lawyer chosen by my spouse in a collaborative law setting make a difference?A:Yes. Often I am asking about what will happen if the other side hires a very good Illinois family lawyer – inevitably a lawyer whom I know well. Clients always believe that they are well served if they have a good lawyer and the other side has a lawyer who is not as well trained, etc. I find that the opposite is the case. I use a tennis analogy. If I am playing tennis with a player who is bad, my game does not look good. If I am playing tennis with a player who is as good or better than me, then I do far better. The same applies to divorce cases. Often with less experienced lawyers, much of the time spent is in trying to educate that lawyer with the law. In speaking with collaborative lawyers from other areas, I learned that collaborative law works best when many of the best lawyers in the area engage in collaborative practice as a model.
Q:Are there times when collaborative law cannot work?A:Yes. Instances where collaborative representation is not recommended are:
Q:What if a divorce case has already been filed? Can a case still be handled collaboratively?A:Yes. Because the concept of collaborative divorce is new, it is up to divorce lawyers to educate judges about the concept. It a case has already been filed, it is critical that judges “back-off” from management of a collaborative divorce case. For example, the process will only work when the court is willing not to set artificial deadlines for such things as discovery cut-off, pretrial conference dates, and the like. In a collaborative divorce there is a much greater emphasis on the responsibility of the parties and their attorneys to “move” their divorce case. However, the recent Supreme Court Rule 900 series of custody rules may create a conflict if a case is being handled collaboratively. For this reason, collaborative participants often agree that it is best to collaborate without the filing of a divorce petition. In fact, the new Supreme Court Rules have extremely tight deadlines, which inevitably will create far higher costs for divorce in cases where custody issues are not virtually immediately resolved.
Q:Can collaborative law be used in a case where my spouse is the sole owner of his own corporation?A:Yes. In business valuation cases, traditionally each party will retain their own expert to value the business. The experts will not work together. Each expert will usually charge a minimum retainer of $5,000. I have found that generally the fees for each expert in a business valuation case will be in excess of $15,000. Many times the cost can be much higher. In a collaborative divorce, it is often agreed upon to engage the use of a neutral expert. While this can be done by agreement, there is no specific provision in Illinois law which allows the court to require the use of a neutral expert in business valuation cases.
Q:How does collaborative law compare to mediation?A: In mediation, there is one “neutral” third party who helps the disputing parties try to settle their case. The mediator should not give either party legal advice, and cannot be an advocate for either side. Collaborative practice was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same absolute commitment to settlement as the sole agenda. Each client has the opportunity for quality legal advice and advocacy built in at all times during the process. Collaborative practice brings more tools to the table than does mediation. Each lawyer who handles a collaborative divorce will typically be trained in mediation. However, collaborative law is not mediation because in collaborative law involves a team practice focused upon the values and interests of the divorcing couple.
Q:Are there any good books which discuss collaborative practice -- which are not written for lawyers (or other professionals) but for the people going through a divorce?A: Yes. Two books published in the summer of 2006 are available at The Gitlin Law Firm. They are:
Q: Are there a list of collaborative lawyers in Illinois?A:Yes. All the lawyers of the Gitlin Law Firm are trained collaborative professionals. Attorney Gunnar J. Gitlin and Attorney Scott J. Farrell are fellows of the Collaborative Law Institute of Illinois and the International Academy of Collaborative Professionals. Additionally, Attorneys Stephanie Kasten and Paulette Gray are trained collaborative lawyers. Attorney Kasten received her training through the Collaborative Law Institute of Illinois. Attorney Gray received her training through the Collaborative Family Law Counsel of Wisconsin. For a listing of other Fellows see: www.collablawil.org. They also have a list of lawyers who handle collaboratively law cases in McHenry County and in Lake County. The lawyers who handle collaborative law cases in McHenry County, Illinois include:
Q:What about coaches in your area? Who can we use for coaches?A:Coaches who are generally in the McHenry County area include:
Financial Professionals in McHenry County:
Q:What sort of document would my spouse and I sign if we agree to a collaborative divorce?A:The document that is signed is a Collaborative Law Participation Agreement. It is somewhat similar to the Statement of Principles and Guidelines of Collaborative Law is available on the CLIL website. This sort of document is signed in every true collaborative law case. The details of the document vary from state to state and sometimes from region to region.
Q:I would like to be trained as a collaborative law professional. Where is training available?A:The International Academy of Collaborative Professionals provides links to training available nationally. Gunnar J. Gitlin is also a member of the International Academy of Collaborative Professionals. For a program to qualify in Illinois it must be two days in length and be "interdisciplinary." Collaborative Law Institute of Illinois prefers attendance at its own programs which are presented annually in Illinois. Upcoming programs available include: Basic Trainings:
Advanced Trainings and Other:
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients and other collaborative law professionals. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law
Firm, P.C. www.gitlinlawfirm.com © 2008, Gitlin Law Firm, P.C. Last Updated: September 10, 2008
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