Coping with divorce is never easy, which is one reason Lacy, Katzen, Ryen & Mittleman, LLP has chosen to be among a limited number of law firms to offer an innovative, unique and new alternative to matrimonial conflict resolution.
The approach is called collaborative family law, and it is being used more and more frequently in matrimonial and family law these days, according to Lacy, Katzen’s Sally Smith, Lawrence Schwind and Suzanne Cognata, who are among a growing number of local attorneys who employ this process.
Collaborative family law has its origins in Minnesota, expanded to California and now has reached New York State. A professional association of attorneys dedicated to the collaborative approach has been established in Rochester — the Association of Collaborative Family Law Attorneys (ACFLA), which provides training, support and resources to attorneys who choose to practice collaborative law.
Under the traditional approach to divorce, each party takes a position based on what he or she determines is best for him or her. If they are unable to reach an agreement or compromise, a judge decides for them. By contrast, under the collaborative approach, the parties agree to discuss their respective needs and concerns until they are able to reach an agreement that fully addresses the concerns of both parties. They further agree that they will not resort to the courts to resolve their differences. Should either party decide to “go to court,” both parties must “start over” with new legal counsel. In this way, the parties and their attorneys commit themselves to the process from the inception of a case.
Under the collaborative approach, the parties address and resolve their differences through informal conferences where the parties, with the assistance of their attorneys, seek to understand each other’s concerns and seek to reach an agreement that is acceptable to both parties.
The same laws apply to both the traditional and collaborative approach. The difference lies in how the parties go about resolving their differences. “Under the collaborative process,” says Schwind, “the parties craft their own resolution, rather than leaving these important decisions to a judge who has only a limited understanding of the parties, their family or their concerns.”
According to ACFLA , the collaborative approach offers clients “a cooperative and dignified approach to separation and divorce.” “In the court system, parties are presumed to be on opposite sides. Once spouses become plaintiffs and defendants, they too often see their litigation as a battle to be waged with a winner and a loser. Because of the adversarial nature of court, litigants can lose sight of the reality that most family members, even as they are reorganizing their lives through separation and divorce, have common goals.”
The informal nature of collaborative law creates a less-confrontational environment for a matrimonial case. As ACFLA materials indicate, “Collaborative attorneys help the parties to face distress over the breakup of their relationship appropriately, identify real interests and remember the need of children to be kept out of the middle.” According to Cognata, it tends to be a more amicable and flexible process and, due to the reduced formality and increased emphasis on cooperation, “it can often work faster and be less expensive than a traditional divorce.”
Collaborative family law should not be confused with the betterknown process of mediation. Mediation is typically directed by one person, not necessarily an attorney, whose role is to seek compromise. “Mediation is useful if both parties are on equal footing,” says Smith, “but in a matrimonial case, where one person often dominates the relationship, mediation can often lead to an unbalanced compromise.”
With the collaborative approach, each party is represented and counseled by their own attorney whose job it is to assist his or her client in reaching a resolution that fully and fairly addresses his or her concerns. “With the collaborative process, the attorneys work together to help their clients address the needs and concerns of both parties without favoring one person over the other. The process becomes more balanced.”
Since collaborative law represents a departure from traditional legal practices, it requires a different set of skills, which are best developed after an attorney has had substantial experience in handling various matrimonial issues. For this reason, special training is required to become a member of ACFLA. This training is usually provided only to attorneys with several years of matrimonial law experience. Further, collaborative attorneys in the Rochester area are required to participate in ongoing training to remain a member of ACFLA. Smith, Schwind and Cognata have committed to this additional level of training to be able to provide this alternative to their clients.
Collaborative family law can be employed effectively in any area of family law, including issues involving custody, visitation, support, or division of assets, as well as issues involved in modifying existing separation or divorce arrangements. However, it is important to note that the collaborative process is not necessarily for everyone. “It is unlikely to be appropriate for people dealing with serious mental problems, drug or alcohol abuse, or the problems associated with an abusive relationship,” says Smith. “In certain cases, the traditional approach to divorce remains necessary and even preferable.”
For that reason, Smith, Schwind and Cognata continue to represent clients in the traditional fashion. However, in light of the potential benefits it may provide to many clients, they are pleased to offer the collaborative approach as an innovative alternative.
Please feel free to contact Smith, Schwind or Cognata if you would like more information regarding Collaborative Family Law or if they may be of any other assistance to you regarding your matrimonial or family law concerns. They will be glad to meet with you at any of Lacy, Katzen’s satellite offices, as well as downtown.