A respectful divorce: collaborative process involves team approach—not courts—to settle disputes

California CPA, Jan-Feb, 2005 by Hal Bartholomew

CPAs, judges, attorneys, other professionals and especially divorcing couples are becoming increasingly dissatisfied with the stress and high costs that too often occur in the family law adversarial process.

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The most popular dispute resolution process has been mediation, but a new approach--Collaborative Practice--provides an alternative to the sometimes adversarial legal process that CPAs can find themselves in the middle of as forensic experts, financial counselors or as the parties' tax preparers.

CPAs are often the first professional financial adviser contacted by a divorcing couple. Their role in advising clients of the appropriate dispute resolution options available will provide a great service to them and likely result in having a continuing relationship with both in the future.

NO NEED FOR COURTS

Collaborative Practice allows the divorcing couple to resolve their disputes without going to court. It is understood that the attorney's representation is limited to the collaborative process and that neither of the attorneys can ever represent them in court in a proceeding against the other spouse.

The elimination of the threat of litigation creates a profound change for the participants, their attorneys and other team members--which often includes CPAs--involved in the divorce. Cooperating, information sharing and creative problem solving replace suspicion, fear and distrust. Full control of the process rests with the divorcing couple.

A contract and court stipulation (when appropriate) confirming the principles and guidelines are an integral part of the process. Without such agreements, the process would be a cooperative divorce, not a total commitment to good faith negotiation and the mutual trust that results.

Principles guiding the collaborative process include:

* A binding agreement by the attorneys and parties to avoid litigation.

* Agreement to provide full, honest and voluntary disclosure of all information.

* Employment of a team of skilled neutral experts, jointly retained by the spouses.

* A process of informal meetings.

Either party may, without reason, terminate their role in the process and proceed along the more traditional path of individual representation and court intervention. A disincentive to litigation is built into the process by the provision that counsel will not represent the party that elects litigation. Collaborative counsel also will withdraw from participation if the client refuses to follow collaborative guidelines or abandons the process.

Collaborative Practice allows clients to speak in a safe environment and with the assistance of the financial team, the widest ranges of settlement options are considered because the process is interest-based rather than claim-denial based.

MORE THAN MEDIATION

Collaborative Practice is similar to mediation and carries many of the same benefits, including saving time and attorney fees. But the process answers many of the concerns expressed about mediation.

Power imbalance between the parties is one frequently cited drawback of mediation. While this is a challenge to a mediator, it is much less of a problem in the collaborative process, where lawyers intervene directly to head off an unreasonable position or redirect or absorb undue emotion.

With attorney-to-attorney communication and the use of a collaborative team, problems can be settled quickly and attorneys can deal directly with issues.

Having two attorneys involved does not produce the same cost as litigation. The use of jointly selected experts and advisers, the elimination of filtering and obtaining all information simultaneously by all parties reduces legal fees and expenses. The parties devote their efforts to a negotiated settlement in an efficient and cooperative manner. Further, the parties develop a rapport with attorneys and other team members, taking away the mistrust and fundamental differences each party brings to the divorce process that can cause mediation to fail or create prolonged litigation.

Also, costly and often unnecessary court preparation and appearances, depositions and other formal discovery methods are replaced by voluntary discovery with full and accurate disclosure of all assets and liabilities.

COLLABORATIVE PROCESS STAGES

The collaborative process typically comprises four stages:

* Stage One: Gathering relevant information and data of the marriage.

* Stage Two: Analyzing the information, choices, options and possible outcomes.

During these first two stages there is a joint commitment to develop all of the facts. Anything any party wants to see or review, they can. If one party has all the information and records, it is that party's responsibility to share the information.

* Stage Three: Developing a settlement model reflecting each client's interests.

* Stage Four: Negotiating a settlement.

As the attorneys are the experts in law, the clients are the experts in what works in their lives, so the attorneys assist the clients to find the solutions. The financial consultant reviewing all assets and incomes assists in developing viable tax and financial options for each of the parties.