The services of Stanton M. Cole in the field of collaborative family law are designed to assist clients who wish to pursue the dissolution process without the acrimony and expense of litigation. However, the law firm of Magnuson Lowell offers a full range of legal service that may be desired, not only in assisting the collaborative law process, but in other areas of law where there are specific legal needs.
For those interested in legal services that complement or are in addition to the collaborative law process, enter www.magnusonlowell.com for the full range of legal services offered by our firm. The Resources section of that website will direct you to the resources that are available to the law firm and our clients, including Legal, Business and Finance, Government, General, News, and Search Engine websites. Upon entering the Resource section of the Magnuson Lowell website, you need only click the area of concern to be immediately directed to your requested website.
If you are interested in pursuing the collaborative law process, whereby you and your spouse and your respective attorneys (along with professional assistants as may be appropriate) make every attempt to negotiate together to reach a resolution of your differences, as opposed to using the traditional model of court discovery and litigation to reach a solution, I have a number of materials and references that will greatly assist the collaborative law process to avoid conflict between the parties.
The following are materials and resources to enable you to negotiate the collaborative process:
1. Compatibility Tool. Most clients involved in the process of dissolving their marriage would prefer to engage in the collaborative process. Collaborative attorneys have designed a form which indicates to what extent you are compatible with this process. Please feel free to complete this form and provide it to me, and I will provide you with my assessment of how well the collaborative law process (as opposed to the alternative of litigation) would suit your interests.
2. Attachment to Agreement for Legal Services. When you first engage me to act as your attorney, an Agreement for Legal Services (also known as a Retainer Agreement) is entered into between the two of us. This attachment modifies the basic Agreement for Legal Services by requiring us to strictly comply with collaborative law techniques. For example, if either party resorts to the court process by formal discovery and/or litigation, I must withdraw as your counsel. Typically, this attachment is not signed unless your spouse and his/her attorney signs a similar agreement. The powerful result of this attachment (when signed by both parties and their counsel) is that every effort will be made to avoid formal discovery and litigation. Statistics have shown that when both parties and their counsel sign this attachment, the collaborative law process rarely breaks down as the sanction of requiring both attorneys to withdraw and force their respective clients to seek new counsel and reinvent the wheel is a powerful incentive for all concerned to work matters out short of formal discovery and litigation.
3. Commitment Agreement with Children; Collaborative Law Commitment Agreement without Children. If the spouses engage their respective attorneys as collaborative law attorneys, the next step is a "4-way" meeting. In this meeting the parties and their counsel (and often other professionals such as coaches, vocational, financial and child specialist advisors) meet together to identify the issues that are a source of conflict between the parties, and determine how best to resolve disputes. It is this procedure that enables both parties to feel that they are a part of the process, rather than having solutions strongly recommended by a mediator or required by a judge, both instances that may well leave one or both parties bitter about the dissolution process. To ensure that the 4-way meeting is as effectual as possible, and that all parties feel free to express their interests without fear of repercussion, all parties attending meeting must sign a Collaborative Law Commitment Agreement.
a document which compels the attorney to act in all respects as a collaborative attorney. This can be for a variety of reasons. For example, one of the attorneys is collaboratively trained, but the other is not and for various reasons refuses to act in a collaborative matter. As your attorney, I will still try to steer the course of the dispute in ways that avoid conflict, such as avoidance of formal discovery and court litigation, and often this procedure results in a successful resolution of conflict between the parties. Most often this occurs when opposing counsel, although not collaboratively trained, is willing to try to utilize the techniques of the collaborative law process. Often opposing counsel is easily able to work we me and our respective clients in this process. In other cases I may have to spend some additional time informing opposing counsel of the collaborative law techniques so that the parties and their counsel may proceed with this process. Finally, in a few cases, opposing counsel simply refuse to utilize any aspect of the collaborative process, insisting on formal discovery and going to court to get orders regulating the conduct of the parties, rather than attempting the same through interest-based negotiation. In any event, although I would not technically be a "collaborative law" attorney in this process, it would be in the best interests of my clients to attempt as much as possible to foster the resolution of the conflict between the parties on a collaborative law basis. Proceeding on this basis is often called "cooperative law," and although the strict procedures of a collaborative law process are not fully observed, many of the tools of collaborative law are utilized in the expectation that the same result will be obtained. Accordingly, if the parties and their attorneys meet to review their differences short of "collaborative law," I recommend that all participants to the meeting sign a Collaborative Law Confidentiality Agreement. Although the attorneys are not committed to withdraw if the meeting breaks down, this Agreement ensures that nothing revealed by one or both of the parties can be used by the other party to improve his/her case in subsequent litigation, and gives the parties and their attorneys a level of comfort that they can speak freely of their concerns without jeopardizing their legal position should the process break down and the parties resort to litigation.
5. Four-Way Meeting Handout. Once the parties and their respective counsel agree to meet to resolve issues between the parties on a collaborative basis, I will provide my clients with a handout that informs them of the process and prepares them so that the meeting will be as productive as possible. Please feel free to review the materials provided in the handout to see how the collaborative process works in action, and how you can contribute to a successful resolution of issues between you and your spouse.
6. E-mail/Letter to Friends/Family Upon Successful Completion of the Collaborative Law Process. If the collaborative law process is successful (and statistics show that 95% of divorces that engage in the collaborative law process reach a conclusion without resorting to litigation), you may wish, as a couple, to inform your family and friends of the conclusion of the process. Although such a letter is not mandatory or even highly recommended, you may consider using this e-mail/letter, or some variation, to inform your family and friends of the continued relationship between the two of you and your children, and your desire or expectation to continue your personal relationship with your family and friends notwithstanding the dissolution of the bonds of your marital relationship.
COLLABORATIVE LAW ATTACHMENT TO
AGREEMENT FOR LEGAL SERVICES
This Attachment is deemed to be in supplement to the Agreement for Legal Services signed by and between the parties. By this attachment I have hired you, Stanton M. Cole, Of Counsel to Magnuson Lowell, PS, to be my collaborative law attorney.
At my request, you will be working collaboratively with my spouse and his or her attorney. This means that you will use your best efforts to try to negotiate a settlement of my case that is satisfactory to me in an efficient, cooperative manner instead of using litigation to resolve our differences.
For case management purposes, we have found it sometimes to be helpful to communicate certain issues to the other professionals involved in your case, so they can work together with me in facilitating the process in a successful manner. I will assume I am authorized to make such limited communications as I may, in my discretion, deem helpful to your case, unless you specifically advise me that an item of information should not be so communicated.
You explained the collaborative process to me, and I understand how it works. You also explained the advantages and disadvantages to me. I understand that I will be given a copy of the collaborative law Participation Agreement in advance and that if I have any questions or concerns prior to signing it I will review those with you.
I understand that as part of this collaborative process, YOU AND MY SPOUSE’S ATTORNEY WILL NOT GO TO COURT. If my case cannot be settled on terms acceptable to me and my spouse, both attorneys will withdraw from the case. You will no longer represent me in this matter and the other attorney will no longer represent my spouse. If that happens, I understand that you will refer me to attorneys to handle my case in Court. I also understand that you will furnish my new attorney with information from your file (to the extent such information is not confidential under the participation agreement) and spend whatever time that is reasonably necessary to help my new attorney learn about my case. I further understand that you will not charge me for the time you spend in helping me find a new attorney or for helping my new attorney learn about my case.
If you have to withdraw from the case because we are unable to settle out of Court, I agree to give my consent, and sign any necessary documents to permit your withdrawal.
__________ and __________, “the Parties", and their lawyers, _______________ and _____________, “the Lawyers” have chosen to enter into this Agreement to use the principles of the Collaborative Law Process to settle the issues arising from the dissolution of their relationship. The Parties, Lawyers, and other professional collaborative team members as may join the case are referred to as “the Participants”.
I. Purpose
The primary goal of the Collaborative Law Process is to settle the outstanding issues in a non-adversarial manner. ____________ and _____________ aim to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to themselves and their family. The Parties have retained collaborative Lawyers to assist them in reaching this goal.
II. Communication
____________ and _____________ intend to effectively communicate with each other to efficiently and economically settle the dissolution of their relationship. Written and verbal communications will be respectful and constructive and will not make accusations or claims not based in fact.
It is agreed that communication during settlement meetings will be focused on the economic and parenting issues in the dissolution and the constructive resolution of those issues.
____________ and _____________ are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement, and each is encouraged to speak freely and express his or her needs, desires, and options without criticism or judgment by the other. The Lawyers may discuss issues directly with, or circulate written communication to, either Party, and this type of direct communication is authorized and not considered a violation of the ethical conduct of the Lawyers. Although the Parties should be informed by their Lawyers about, and may discuss with each other, the litigation alternatives and the outcomes they might attain, neither Party nor their lawyers will use the threat to withdraw from the process or to go to court as a means of achieving a desired outcome or forcing a settlement.
III. Children's Issues
In resolving issues about sharing the enjoyment of and responsibility for any children, ____________ and _____________ agree to make every effort to reach amicable solutions that promote the children's best interests.
____________ and _____________ agree to act quickly to mediate and resolve differences related to the children to promote a caring, loving and involved relationship between the children and both parents.
The Parties acknowledge that inappropriate communications regarding their dissolution of their relationship can be harmful to their children. They agree that settlement issues will not be discussed in the presence of their children, or that communication with the children regarding these issues will occur only if it is appropriate and done by mutual agreement, or with the advice of a child specialist.
____________ and _____________ agree to make changes to the residence of the children by first obtaining the written agreement of the other Party.
IV. Participation with Integrity
Each Participant shall uphold a high standard of integrity, and shall not take advantage of inconsistencies, miscalculations, wrong assumptions or omissions that may take place during the collaborative process and shall immediately disclose them and seek to have them corrected. The Participants shall uphold the “Rules of Good Faith in the Collaborative Process”, attached to this agreement.
V. Negotiation in Good Faith
The Parties and their Lawyers agree to deal with each other in good faith and to promptly provide all necessary and reasonable information requested. No formal “discovery” procedures (information gathering) such as depositions, subpoenas or interrogatories will be used unless specifically agreed to in advance by ____________ and _____________.
____________ and _____________ acknowledge that by using informal discovery, they are giving up certain rights, for the duration of the Collaborative Law Process, including the right to formal discovery, formal court hearings, restraining orders and other procedures provided by the adversarial legal system. They give up these measures with the specific understanding that both Parties make full and fair disclosure of all assets, income, debts and other information. The Parties acknowledge that participation in the Collaborative Law Process, and the settlement reached, is based upon the assumption that both Parties have acted in good faith and have provided complete and accurate information to the best of their ability. The Parties agree to provide sworn statements making full and fair disclosure of their income, assets and debts, if requested.
VI. Cautions and Limitations
In electing the Collaborative Law Process, ____________ and _____________ understand that there is no guarantee that the process will be successful in resolving their case. They understand that the process may not eliminate concerns or differences which have led to the current conflict. While intent on striving to reach a cooperative solution, success will ultimately depend on our commitment to making the process work. The Parties understand that they are still expected to assert their respective interests and their respective lawyers will help each of them do so.
____________ and _____________ further understand that while the Lawyers share a commitment to the process described in this document, each of them has a professional duty to represent his or her own client diligently, and is not the lawyer for the other party.
The parties agree that all professionals employed through the collaborative law process are entitled to be paid for their services. Both parties agree to make funds available for this purpose.
VII. Experts and Consultants
When appropriate and needed, the Parties will use other collaborative professional team members, or other jointly hired experts. The Parties will agree in advance of retaining the collaborative team members as to how their costs will be paid. In the event the Collaborative Law Process terminates, all collaborative professional team members, or other jointly hired experts, will be disqualified as witnesses and their work product will not be disclosed to anyone other than the Participants to this agreement and will not be admissible as evidence unless the Parties agree otherwise in writing.
VIII. No Court Intervention
Unless otherwise agreed, prior to reaching final agreement on all issues, or before termination of the Collaborative Law Process, no motion or other court intervention shall be filed other than that which is required to be filed by applicable court rules.
IX. Disqualification by Court Intervention
____________ and _____________ understand that their collaborative Lawyers' representation is limited to providing services within the Collaborative Law Process. Thus, while each Lawyer is the advisor of his or her client and serves as the client's representative and negotiator, the Parties mutually acknowledge that both Lawyers will be disqualified from representing them in a contested court proceeding against the other Party.
X. Withdrawal of Lawyer
If either Lawyer withdraws from the case for any reason, the Lawyer agrees to do so promptly by a written notice to the other party through the other party's Lawyer. This may be done without terminating the status of the case as a collaborative law case. The party may continue in the Collaborative Law Process by retaining a new Lawyer who will agree in writing to be bound by these guidelines and principles.
However, a Lawyer must withdraw from the Collaborative Law Process in the event they learn that their client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the Collaborative Law Process. The Lawyer withdrawing will advise the other Lawyer that he or she is withdrawing, and that the Collaborative Law Process must end.
XI. Election to Terminate Collaborative Process
If a Party decides to terminate the Collaborative Law Process, prompt written notice will be given to the other Party through his or her Lawyer. Upon termination of the Collaborative Law Process by a Party or a Lawyer, there will be a thirty (30) day waiting period (unless there is an emergency) before any court hearing, to permit the Parties to retain new lawyers and make an orderly transition. All signed temporary agreements will remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of the other Party. It is therefore mutually agreed that either Party may bring this provision to the attention of the Court to request a postponement of a hearing. If at any time a Party, Lawyer, or both, communicate a desire to terminate the Collaborative Law Process, Parties and Lawyers agree to attend one more 4-way session for the purpose of addressing this matter prior to formal termination of the process.
XII. Confidentiality
All communication used within the Collaborative Law Process will be confidential except as otherwise provided in this agreement. If the Collaborative Law Process terminates neither Party will:
A. Introduce as evidence in Court information used during the Collaborative Law Process for the purpose of reaching a settlement. This does not include documents existing prior to the collaborative process or sworn statements signed under penalty of perjury;
B. Ask or seek to compel any Participant to this agreement to testify in any court proceedings regarding matters disclosed during the Collaborative Law Process or covered by this agreement; and
C. Disclose to anyone not a Party to this agreement information used during the Collaborative Law Process for the purpose of reaching a settlement, except for the documents existing prior to the collaborative process that would be otherwise be discoverable but for this agreement. This provision is to maintain confidentiality for the Participants.
XIII. Rights and Obligations Pending Settlement
Unless agreed otherwise in writing:
A. The use or transfer of any assets shall be done only by agreement in writing, except for the necessities of life and with prompt notice to all Participants;
B. Each Party will treat the other Party and their minor children with respect;
C. All available insurance coverage must be maintained and continued without change in coverage or beneficiary designation; and
D. Any changes made to utilities, accounts of any kind, or credit card accounts will be changed only by written agreement.
XIV. Enforceability of Agreements
In the event that ____________ and _____________ require a temporary agreement during the Collaborative Law Process, the agreement will be put in writing and signed by the Parties and the Lawyers. If the Collaborative Law Process terminates, the written agreement is enforceable and may be presented to the court as a basis for an order, which the Court may make retroactive to the date of the written agreement. Similarly, once a final agreement is signed, if a Party should refuse to honor it, the final agreement may be presented to the Court in any subsequent action. An unsigned agreement would not be enforceable outside the collaborative process absent agreement of the Parties.
XV. Acknowledgment
All Participants acknowledge that they have read this Agreement, understand its terms and conditions, and agree to abide by them. The Parties have chosen the Collaborative Law Process to reduce emotional and financial costs, and to generate a final agreement that addresses their concerns. They agree to work in good faith to achieve these goals.
Please place your initials at the bottom of this page indicating you agree and understand. We encourage questions about these rules.
1. I agree to proceed in “Good Faith”. Good faith means to abide by the rules of common courtesy, keep an open mind, be willing to explore options without holding a fixed position, and share all pertinent information.
2. I agree to voice any concerns or questions about the overall process, direction, or any interactions amongst the Participants.
3. I agree to convert complaints into neutral requests to the best of my ability, and to refrain from blaming and negative assumptions based on the past behavior of my partner.
4. I agree to work productively in the “here and now” keeping everyone’s future well being in mind.
AUTHORIZATION AND CONSENT FORM
We hereby authorize each member of the Collaborative Team (the “Participants”) to communicate by any means, including e-mail, with all other members of the team during the Collaborative Law Process. We understand that communication and cooperation among professional team members is an integral part of the collaborative process, and that the express goal of such communication is to assist us in understanding and resolving all issues surrounding settlement. This authorization and consent will terminate upon termination of the Collaborative Law Process.
__________ and __________, “the Parties", and their lawyers, _______________ and _____________, “the Lawyers” have chosen to enter into this Agreement to use the principles of the Collaborative Law Process to settle the issues arising from the dissolution of their relationship. The Parties, Lawyers, and other professional collaborative team members as may join the case are referred to as “the Participants”.
I. Purpose
The primary goal of the Collaborative Law Process is to settle the outstanding issues in a non-adversarial manner. ____________ and _____________ aim to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to themselves and their family. The Parties have retained collaborative Lawyers to assist them in reaching this goal.
II. Communication
____________ and _____________ intend to effectively communicate with each other to efficiently and economically settle the dissolution of their relationship. Written and verbal communications will be respectful and constructive and will not make accusations or claims not based in fact.
It is agreed that communication during settlement meetings will be focused on the economic and parenting issues in the dissolution and the constructive resolution of those issues.
____________ and _____________ are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement, and each is encouraged to speak freely and express his or her needs, desires, and options without criticism or judgment by the other. The Lawyers may discuss issues directly with, or circulate written communication to, either Party, and this type of direct communication is authorized and not considered a violation of the ethical conduct of the Lawyers. Although the Parties should be informed by their Lawyers about, and may discuss with each other, the litigation alternatives and the outcomes they might attain, neither Party nor their lawyers will use the threat to withdraw from the process or to go to court as a means of achieving a desired outcome or forcing a settlement.
III. Participation with Integrity
Each Participant shall uphold a high standard of integrity, and shall not take advantage of inconsistencies, miscalculations, wrong assumptions or omissions that may take place during the collaborative process and shall immediately disclose them and seek to have them corrected. The Participants shall uphold the “Rules of Good Faith in the Collaborative Process”, attached to this agreement.
IV. Negotiation in Good Faith
The Parties and their Lawyers agree to deal with each other in good faith and to promptly provide all necessary and reasonable information requested. No formal “discovery” procedures (information gathering) such as depositions, subpoenas or interrogatories will be used unless specifically agreed to in advance by ____________ and _____________.
____________ and _____________ acknowledge that by using informal discovery, they are giving up certain rights, for the duration of the Collaborative Law Process, including the right to formal discovery, formal court hearings, restraining orders and other procedures provided by the adversarial legal system. They give up these measures with the specific understanding that both Parties make full and fair disclosure of all assets, income, debts and other information. The Parties acknowledge that participation in the Collaborative Law Process, and the settlement reached, is based upon the assumption that both Parties have acted in good faith and have provided complete and accurate information to the best of their ability. The Parties agree to provide sworn statements making full and fair disclosure of their income, assets and debts, if requested.
V. Cautions and Limitations
In electing the Collaborative Law Process, ____________ and _____________ understand that there is no guarantee that the process will be successful in resolving their case. They understand that the process may not eliminate concerns or differences which have led to the current conflict. While intent on striving to reach a cooperative solution, success will ultimately depend on our commitment to making the process work. The Parties understand that they are still expected to assert their respective interests and their respective lawyers will help each of them do so.
____________ and _____________ further understand that while the Lawyers share a commitment to the process described in this document, each of them has a professional duty to represent his or her own client diligently, and is not the lawyer for the other party.
VI. Experts and Consultants
When appropriate and needed, the Parties will use other collaborative professional team members. The Parties will agree in advance of retaining the collaborative team members as to how their costs will be paid. In the event the Collaborative Law Process terminates, all collaborative professional team members will be disqualified as witnesses and their work product will not be disclosed to anyone other than the Participants to this agreement and will not be admissible as evidence unless the Parties agree otherwise in writing.
VII. No Court Intervention
Unless otherwise agreed, prior to reaching final agreement on all issues, or before termination of the Collaborative Law Process, no motion or other court intervention shall be filed other than that which is required to be filed by applicable court rules.
VIII. Disqualification by Court Intervention
____________ and _____________ understand that their collaborative Lawyers' representation is limited to
providing services within the Collaborative Law Process. Thus, while each Lawyer is the advisor of his or her client and serves as the client's representative and negotiator, the Parties mutually acknowledge that both Lawyers will be disqualified from representing them in a contested court proceeding against the other Party.
IX. Withdrawal of Lawyer
If either Lawyer withdraws from the case for any reason, the Lawyer agrees to do so promptly by a written notice to the other party through the other Party’s Lawyer. This may be done without terminating the status of the case as a collaborative law case. The party may continue in the Collaborative Law Process by retaining a new Lawyer who will agree in writing to be bound by these guidelines and principles.
However, a Lawyer must withdraw from the Collaborative Law Process in the event they learn that their client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the Collaborative Law Process. The Lawyer withdrawing will advise the other Lawyer that he or she is withdrawing, and that the Collaborative Law Process must end.
X. Election to Terminate Collaborative Process
If a Party decides to terminate the Collaborative Law Process, prompt written notice will be given to the other Party through his or her Lawyer. Upon termination of the Collaborative Law Process by a Party or a Lawyer, there will be a thirty (30) day waiting period (unless there is an emergency) before any court hearing, to permit the Parties to retain new lawyers and make an orderly transition. All signed temporary agreements will remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of the other Party. It is therefore mutually agreed that either Party may bring this provision to the attention of the Court to request a postponement of a hearing.
If at any time a Party, Lawyer, or both, communicate a desire to terminate the Collaborative Law Process, Parties and Lawyers agree to attend one more 4-way session for the purpose of addressing this matter prior to formal termination of the process.
XI. Confidentiality
All communication used within the Collaborative Law Process will be confidential except as otherwise provided in this agreement. If the Collaborative Law Process terminates neither Party will:
A. Introduce as evidence in Court information used during the Collaborative Law Process for the purpose of reaching a settlement. This does not include documents existing prior to the collaborative process or sworn statements signed under penalty of perjury;
B. Ask or seek to compel any Participant to this agreement to testify in any court proceedings regarding matters disclosed during the Collaborative Law Process or covered by this agreement; and
C. Disclose to anyone not a Party to this agreement information used during the Collaborative Law Process for the purpose of reaching a settlement, except for the documents existing prior to the collaborative process that would be otherwise be discoverable but for this agreement. This provision is to maintain confidentiality for the Participants.
XII. Rights and Obligations Pending Settlement
Unless agreed otherwise in writing:
A. The use or transfer of any assets shall be done only by agreement in writing, except for the necessities of life and with prompt notice to all Participants;
B. Each Party will treat the other Party with respect;
C. All available insurance coverage must be maintained and continued without change in coverage or beneficiary designation; and
D. Any changes made to utilities, accounts of any kind, or credit card accounts will be changed only by written agreement.
XIII. Enforceability of Agreements
In the event that ____________ and _____________ require a temporary agreement during the Collaborative Law Process, the agreement will be put in writing and signed by the Parties and the Lawyers. If the Collaborative Law Process terminates, the written agreement is enforceable and may be presented to the court as a basis for an order, which the Court may make retroactive to the date of the written agreement. Similarly, once a final agreement is signed, if a Party should refuse to honor it, the final agreement may be presented to the Court in any subsequent action. An unsigned agreement would not be enforceable outside the collaborative process absent agreement of the Parties.
XIV. Acknowledgment
All Participants acknowledge that they have read this Agreement, understand its terms and conditions, and agree to abide by them. The Parties have chosen the Collaborative Law Process to reduce emotional and financial costs, and to generate a final agreement that addresses their concerns. They agree to work in good faith to achieve these goals.
Please place your initials at the bottom of this page indicating you agree and understand. We encourage questions about these rules.
1. I agree to proceed in “Good Faith”. Good faith means to abide by the rules of common courtesy, keep an open mind, be willing to explore options without holding a fixed position, and share all pertinent information.
2. I agree to voice any concerns or questions about the overall process, direction, or any interactions amongst the Participants.
3. I agree to convert complaints into neutral requests to the best of my ability, and to refrain from blaming and negative assumptions based on the past behavior of my partner.
4. I agree to work productively in the “here and now” keeping everyone’s future well being in mind.
AUTHORIZATION AND CONSENT FORM
We hereby authorize each member of the Collaborative Team (the “Participants”) to communicate by any means, including e-mail, with all other members of the team during the Collaborative Law Process. We understand that communication and cooperation among professional team members is an integral part of the collaborative process, and that the express goal of such communication is to assist us in understanding and resolving all issues surrounding settlement. This authorization and consent will terminate upon termination of the Collaborative Law Process.
It is hereby agreed by and between the undersigned husband and wife (“parties”) and their respective attorneys that the following provisions will apply for all communications made during any 4-way meetings between them, or any 5-way meetings between the parties, their respective attorneys, and any advisors or experts present at such meeting, to provide information for enabling the parties to reach agreement:
1. All communication used during 4-way meetings between clients and their respective attorneys will be confidential except as otherwise provided in this agreement. If the process between the parties whereby they meet to voluntarily attempt to reach agreement without the necessity of pursuing litigation to achieve their objectives terminates, neither Party will:
a. Introduce as evidence in Court information used during the 4-way meetings for the purpose of reaching a settlement. This does not include documents existing prior to this process or sworn statements signed under penalty of perjury executed prior to this process;
b. Ask or seek to compel any Participant to this agreement to testify in any court proceedings regarding matters disclosed during this Process or covered by this agreement; and
c. Disclose to anyone not a Party to this agreement information used during this Process for the purpose of reaching a settlement, except for the documents existing prior to the collaborative process that would be otherwise be discoverable but for this agreement. This provision is to maintain confidentiality for the Participants.
2. The signature of an participant to this agreement other than the clients and their respective attorneys constitutes an agreement between such participants and the other signatories to this agreement that such participant shall respect the conditions of this confidentiality agreement as set forth in paragraph 1 above in the same manner as if the participant were a party to these proceedings.
This handout has some general guidelines to help make collaborative law joint sessions (also called “4-way meetings”) as productive as possible. If you are scheduled for a 4-way meeting with your spouse and attorneys present, you may find it helpful to review these guidelines prior to each joint session. These are things you can do to help yourself.
Before a joint session
You will have a meeting with your lawyer prior to every joint session. That meeting will usually be a day or two prior to the joint session. The first meetings will take a little longer than the later meetings, because your lawyer will orient you to the process. Later meetings will tend to be shorter; depending on the agenda, sometimes there will only be a quick check-in by telephone. The goal is to ensure that you and your lawyer are both fully prepared to make the next joint session as productive as possible.
There will often be homework between joint sessions. If there is homework, it needs to be done. If you could not complete your homework, or if it is a bad day, call your lawyer to talk about rescheduling the session. It is better to reschedule than to proceed if you are not ready.
On the day of the joint session, please arrange your schedule so you can arrive on time. Be sure to ask for directions if you are unfamiliar with the location. Joint sessions require the coordination of lots of schedules, and can be expensive on account of the paid professionals who are present. Being on time shows respect to everyone there, and makes the most productive use of everyone’s time.
Everyone will have time constraints at times. If you do have time constraints, please inform everyone as early as possible. Joint sessions can sometimes run over, and knowing time constraints in advance allows for planning.
During a joint session
Much of the work in a collaborative case occurs during the joint session. Joint sessions are where discussions about the process occur, where discussions about necessary information occur, and where people work together to solve their problems. In order for this to occur, everyone in the room should feel safe that they can express themselves on what matters.
Part of the process is getting clarification about what really matters. For example, someone may think they need a certain amount of child support. But the need behind that is not “child support”, but being able to provide for themselves and their children. The key to success in the collaborative process is focusing on and expressing your needs or interests. It may not be helpful to focus on specific ways to achieve a particular outcome. The reason is that there may be other ways to address your needs and interests, as you work towards a constructive and acceptable agreement for you and your family. You may discover a better solution if you are open to different approaches and allow everyone to brainstorm.
People often ask how to behave during joint sessions. The most important thing is to be authentic and to engage in a discussion about what matters to you and what matters to the other party. Remember, everyone has needs, and the needs have to be addressed to get to an agreement. Here are some guidelines.
• Practice “active listening.” Listen fully while the other person speaks, and try to listen for the needs and interests that are behind the statements that are being made.
• Perhaps the most difficult thing for most people is not interrupting when the other party or his or her lawyer is speaking. However, this is important to ensure that everyone can be fully heard. This process only works when all persons are heard – that means both sides. You will also have a full and equal opportunity to speak on every issue presented for discussion. Also, try not to spend time on planning your reply until the speaker has finished. It is hard to listen if you are also trying to formulate a response.
• Try to understand what the other is really saying. Focus especially on the concerns, fears, needs, and interests behind the words that are being used.
• Verify how accurately you understand what the speaker said by restating your understanding in different words. Remember, you can say, “I understand” without meaning “I agree.”
• Ask for clarification of points that aren’t completely clear to you.
• When speaking, do so in a manner that is respectful to everyone present – including yourself. Here are some examples:
• When negotiating or talking to the group, include everyone in the room. Try not to exclude anyone.
• When talking about someone who is in the room, refer to him or her by his or her name; Try to avoid “he” or “she.”
• If you feel like something inaccurate has been stated, simply seek clarification or correct the misunderstanding.
• If you believe you have not been fully or accurately heard, do speak up and say so. For example, you may want to say: “That is not exactly what I meant. I meant ….” Just as it is important for others to be heard, you too must be heard.
• If you need some time to formulate your thoughts, please say so. That way we can give you your time. If you need some help formulating your thoughts into a statement or question that will be respectful, you may take a time out and discuss it with your lawyer.
• Try to speak for yourself only. It is easy to make wrong assumptions about what others may be thinking or feeling. Clarifying questions are appropriate.
• When describing what is important to you, try to use “I” statements instead of accusatory “you” statements. Using “I” statements, you can state what you observe and what you feel. Ask neutral clarifying questions. State or ask what you would like to do about it.
Example: “I noticed that the children were not with you twice this month when they were scheduled.” (What you observed.) “I feel disrespected when an agreement is not followed.” (How you felt.) “I think the children are disappointed if they have scheduled time with you that does not happen.” (What you believe.) “I would like to learn what your perspective may be?” (Neutral clarifying question.) “I would like us to work on a solution that would not result in the children being disappointed in that way.” (What you would like to do about it.)
• If either side uses language that blames or finds fault with the other persons in the room, the discussion will usually not move forward, because it will tend to make the other person defensive. Accordingly, try not to use language that is blaming and accusatory.
• Similarly, try to avoid using loaded terms like “fair” and “unfair” when describing various options. Words like “acceptable,” “workable,” “agreeable,” and their converses, “unacceptable,” “unworkable,” “not agreeable,” are preferable because they allow room for reasonable people to differ.
At any time, if you feel overwhelmed or if you simply need a break, you can ask for a recess. If something is not working for you, tell your lawyer so it can be addressed.
PROPOSED CONTENTS OF E-MAIL/LETTER TO FRIENDS AND FAMILY FOLLOWING A SUCCESSFUL CONCLUSION TO A COLLABORATIVE LAW CASE
Dear ________:
We hope this e-mail/letter finds you and your family in good health and enjoying the holiday season.
Although an e-mail/letter seems impersonal, we wanted to let a few people know directly that our family is changing. It is important to us to ensure that our children, _______________________ [list names] continue(s) to feel secure and so you can be prepared if your kids come home with the news from school. This one is too important to leave to the gossip mill so we thought this would be the best way to let everyone get the correct message all at once.
We are divorcing after a wonderful ___ year marriage. It is amicable and we are working as friends to make this transition as smooth as possible for us and the children. We want to let everyone know this to try to alleviate some of those uncomfortable situations we all feel when hearing the news and wonder what to say or do. We’d prefer people to be upbeat in that, while we can no longer live together, we can make this a successful change for everyone involved.
As we have throughout our marriage, we will continue to share parenting responsibilities. You will see us both at school events and picking up and dropping off. The children will alternate between the two households. Play dates and routines will stay the same, so we hope this will not impact you continuing to send your kids our way to play. You can use our cell phone #s at any time to call (phone numbers listed). You can also contact us via the following e-mail/letter addresses (e-mail/letter addresses listed).
For those of you we have seen recently, we apologize for not saying anything. It was critically important for the kids to hear this from us rather then anyone else. We love our children very much and have worked carefully to tell them after making sure we had a plan about how we will parent and where they will live. We have been working on this for awhile to make it a thoughtful transition. __________ __________________[list children’s names] appear(s) to be comfortable with the transition and, in fact, a little excited about having two homes.
If you have any questions, comments or concerns, please feel free to contact either of us at anytime. Thanks to everyone for your support.
1. Compatibility Tool. Most clients involved in the process of dissolving their marriage would prefer to engage in the collaborative process. Collaborative attorneys have designed a form which indicates to what extent you are compatible with this process. Please feel free to complete this form and provide it to me, and I will provide you with my assessment of how well the collaborative law process (as opposed to the alternative of litigation) would suit your interests.