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Birmingham Bar Association Bulletin

Section Spotlight modified to allow the employment of other professionals to assist parties in their effort to achieve an amicable resolution. “Collaborative Practice” now refers to an interdisciplinary team approach that commonly employs mental health and financial professionals in addition to lawyers, all of whom commit themselves to assisting clients in achieving a mutually acceptable outcome, and all of whom would be disqualified to act on behalf of the clients in litigation. Collaborative Practice is currently employed all over the country and around the world and although it was born in the family law arena, it has been applied in probate and civil matters as well. So how does this work? And why employ all these different professionals? The truth is that most lawyers are simply not qualified to help their clients navigate the thorny emotional and communication issues that often belabor any negotiation process and impede a productive discussion of possible solutions. Accordingly, having mental health professionals on the team, acting as coaches rather than therapists, to assist clients with this aspect of the conflict can be invaluable. Likewise, having a trained financial professional acting as a neutral to marshal the financial information, provide appropriate checks on disclosure and a balanced view of the financial aspects of the case, while also providing assistance with budgeting and projections of future income streams, is essential to achieving a fully informed outcome. Although most lawyers, mental health and financial professionals are trained to work alone, forming a team that allows each member to provide the skills for which he/she has been specifically trained and is uniquely qualified makes good sense. It allows each professional to do what they do best and provides the clients with all aspects of support most commonly needed when facing a legal dispute. This does require an internal shift for each of the professionals in order to perform successfully in Collaborative Practice. It can be challenging to each of the professions to adjust to the work of “group-think” and to see the parties’ legal dispute as a shared problem about which the group must work in tandem with the parties to address the needs, interests and goals of both clients, rather than reverting to a competitive, or single-minded view of the issues and the outcome. Performed well, however, the process has the potential to do what litigation never does: provide a win/win outcome. Functionally, the process is divided into a series of meetings. Each meeting is organized around an agenda that has been tailored to address specific issues, and is then memorialized in minutes following the meeting that are shared with the parties and all professional team members, including those not present at the meeting. This provides continuity between meetings, and helps to keep everyone on the same page as the process progresses. Incremental or temporary agreements made by the parties in meetings are memorialized in minutes and those that are intended to be relied on are signed by the parties to later be memorialized in a final agreement. The idea is that each meeting provides a constructive environment in which the parties can address one another directly. The decision about which professionals to include in each meeting is part of what is collaborated between team members and the parties in advance of the meetings with the goal being to provide the support required by the parties to facilitate the most effective communication and success in addressing each meeting’s agenda. Meetings seldom exceed two to three hours, and the time between meetings is generally spent addressing the work required to address the next meeting’s agenda. When properly managed, the process moves at a consistent pace, and is concluded as quickly as all the issued can be addressed and resolved. There are several clear stages in the collaborative process; the first of which is information gathering, goal setting and issue identification; then, brainstorming, reviewing and testing options for resolution; and finally, determination, finalization and memorialization of agreed upon terms. To conclude the process in family law matters, the Complaint/Petition and Agreements are all filed at the same time with the applicable court just as in an uncontested process. Skeptics may view Collaborative Practice as a “kumbaya” approach only applicable to parties who already get along, or as just a gimmick to try to engage parties in a more complicated and expensive process. A statistical review of over nine hundred and thirty collaborative cases performed by the International Academy of Collaborative Practitioners in 2012, provides some facts: 86% of the reviewed cases concluded successfully in the collaborative process; 44% concluded in six months or less, 79% concluded in a year or less and only 3% of cases extended beyond 24 months; 26 Birmingham Bar Association


Birmingham Bar Association Bulletin
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