Collaborative in Jersey

Sound Advice from Mel Gibson

2011-05-05T10:48:00.000-07:00

From Collaborative in Jersey...

The following is a small segment of an interview with Mel Gibson; his first following a string of very troubling stories about his personal life. The following comment, though, reveals the father and he gives sound advice on how to handle the strain of a marital/relationship dissolution.

By THE DEADLINE TEAM | Thursday April 21, 2011 @ 6:53pm PDT (Excerpt)

WEINER: What are you dealing with in terms of legal things?

GIBSON: Everybody has a dog in the fight but me, oddly enough. I haven’t got a lawsuit out on anyone because I think it’s extremely… You have to think about your children. That’s all there is to it. I can’t really discuss this. There are a lot of delicate and sensitive issues and I don’t want to be the cause of grief to any of my children or to friends or family or associates on either side because it’s a matter that should be dealt with. It’s important to me that it’s dealt with correctly and it’s important that I maintain my integrity through this for the sake of those I love. So speaking about it is just not on and apart from anything else, I’m prohibited by court order. Now, the system is flawed as we know, but you’ve got to ride with that. I think that it will all eventually come out in the wash and I’m depending on that. I have a lot of faith in that. Even though any organization, anybody, will always be flawed or not perfect in many ways. But at the end of the day, they’re trying to work in a fashion that achieves some kind of justice. I’m going to hook my hitch onto that and follow that through. Perhaps some time I will go on and comment in a more full way. But even if the judge hadn’t put some kind of court order on me, I think I’d stay mum on a lot of these things just out of consideration for Lucia and my other children and my grandchildren and friends and family. It doesn’t do any good. Maybe, when this is all over and hopefully, justice is achieved. Maybe I could say something. But I’d never want to leave anything lying around that would... a lot of damage has been done. I don’t want to add to it.

http://www.deadline.com/2011/04/exclusive-mel-gibson-finally-talks/

Alternative Dispute Seminar Presentation -- Nov. 30, 2010

2010-12-01T08:59:00.000-08:00

From Collaborative in Jersey...

HUNTERDON COUNTY BAR ASSOCIATION SEMINAR
COLLABORATIVE LAW AS A VIABLE CDR
PRESENTED ON NOVEMBER 30, 2010
Presenters: Kevin M. Kilcommons, Esq. and Patricia Garity Smits, Esq.

“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[?]), in THE LIFE AND WRITINGS OF ABRAHAM LINCOLN 327, 328 (Philip Van Doren Stern ed., 1940).

I. THE EVOLUTION OF CDR TO COLLABORATIVE LAW: HISTORIC PERSPECTIVE.

Before any formalized laws, man simply resolved differences by the club, spear or sword. Later, we evolved to what became known as “trial by battle” in the early centuries of the first millennium. This process involved the accuser and the accused facing-off in a formal duel. “It was believed that God would be on the side of the innocent.” Encyclopedia Britannica. In fact, if during the brawl the accused killed or caused the accuser to withdraw the charges, then he was acquitted. But as in all things legal, there was a loophole: if the accused survived the entire day’s combat, he was, likewise, acquitted. How far we have evolved at resolving differences!
For the last 500 plus years, our society has benefited from the court system. But we may have come to the point in the evolution of society where the traditional court, and the centuries-old system of adversarial law, is not sufficient to address today’s societal needs. Traditional dispute resolution (invasive, sometimes public, always costly and emotionally damaging) can seem to our clients at times as barbaric as the feudal form of dispute resolution by the sword – and many might again prefer this later option as a time and money saver.
The pressure for change has fueled the Alternative Dispute Resolution/ CDR surge over the past fifteen years. These methods have now been institutionalized in the form of mediation and non-binding arbitration within the Courts, which have become vital tools to reduce calendar backlogs. This change was inevitable and effective. In fact, our judges acknowledge that a single person presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is fact, and is due to the reality that marital breakups are too complicated to resolve –with lasting results-- by just one person. Some issue or issues will sometimes be left unresolved or a party will come away from a judgment so dissatisfied, that years of post-judgment litigation becomes a certainty.
Now, a further evolution of ADR is taking place, and it is collaborative law. Collaborative law as an evolved form of dispute resolution began in the early 1990’s in the Mid-West and has already spread through Canada, Europe and into South West Asia. The collaborative practice is not limited to family law, as it is just as effective in Probate/Trust and Estates, Healthcare, Employment , and Construction. The purpose of this presentation is to introduce the practitioner with the basic elements of collaborative law, its current status and how it can be employed to effectively resolve disputes outside of court.
Adopted from “Trial by Battle,” Kevin M. Kilcommons, 2008 (www.collaborativeinjersey.blogspot.com)
II. COLLABORATIVE LAW FACTS (from the Uniform Collaborative Law Act, July 2009):
Definition:

Collaborative law is a voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter rather than having a ruling imposed upon them by a court or arbitrator. The distinctive feature of collaborative law, as compared to other forms of alternative dispute resolution such as mediation, is that parties are represented by lawyers (“collaborative lawyers”) during negotiations. Collaborative lawyers do not represent the party in court, but only for the purpose of negotiating agreements. The parties agree in advance that their lawyers are disqualified from further representing parties by
appearing before a tribunal if the collaborative law process ends without complete agreement
(“disqualification requirement”). See William H. Schwab, Collaborative Lawyering: A Closer
Look at an Emerging Practice, 4 PEPP. DISP. RESOL. L.J. 351, 358 (2004).

Parties thus retain collaborative lawyers for the limited purpose of acting as advocates and counselors during the negotiation process.

Positional and Problem Solving Negotiations and the Disqualification Requirement:

The goal of collaborative law is to encourage parties to engage in “problem-solving”
rather than “positional” negotiations. See ROGER FISHER ET AL., GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 4-14 (2d ed. 1991). Under a positional approach to negotiation,
the parties see the negotiation process as a contest to be won by one side at the expense of the
other. Id. at 6. Parties to positional negotiations often assume an extreme starting position, and
make small concessions within their predetermined bargaining range usually in response to
concessions made by the other side or threats. Id. If they do not find a meeting point of
agreement between their positions, negotiations break down and litigation ensues. JULIE
MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW
81-84 (2007) [hereinafter MACFARLANE, NEW LAWYER].

In contrast, parties who follow a problem-solving, or what is sometimes referred to as
interest-based, approach to negotiation promoted by collaborative law view a dispute as the
parties’ joint problem that needs to be solved. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 759-60 (1984).
Under this approach, the negotiation process focuses on the parties’ underlying “needs, desires, concerns, and fears” and not only on the parties’ articulated positions. FISHER ET AL., supra, at 40. A problem-solving approach assumes that “[b]ehind opposed positions lie shared and compatible interests, as well as conflicting ones,” and that looking at interests rather than positions is beneficial because “for every interest there usually exist several possible positions that could satisfy it.” Id. at 42. Accordingly, a problem-solving negotiator focuses on “finding creative solutions that maximize the outcome for both sides.” Peter Robinson, Contending with Wolves in Sheep’s Clothing: A Cautiously Cooperative Approach to Mediation Advocacy, 50 BAYLOR L. REV. 963, 965 (1998). Lawyers can and do, of course, encourage clients to engage in problem-solving negotiations without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the disqualification requirement—the enforcement mechanism that parties create by contract to ensure that problem-solving negotiations actually occur. The disqualification requirement enables each party to penalize the other party for unacceptable negotiation behavior if the party who wants to end the collaborative law process is willing to assume the costs of engaging new counsel. “[E]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through settlement.” Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. DISP. RESOL. 131, 133 (2008).

Because of these mutually agreed upon costs of failure to agree, collaborative law is a
modern method of addressing the age old dilemma for parties to a negotiation of assuring that
“one’s negotiating counterpart is and will continue to be a true collaborator rather than a
‘sharpie.’” Ted Schneyer, The Organized Bar and the Collaborative Law Movement: A Study in
Professional Change, 50 ARIZ. L. REV. 289, 327 (2008). It solves the age old problem for
negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other’s intentions and “when the pursuit of self-interest by each leads to a poor
outcome for all” —the famous “Prisoner’s Dilemma” of game theory. ROBERT ALEXROD, THE
EVOLUTION OF COOPERATION 7 (1984).

Multiple Models of Collaborative Law Practice:

To encourage problem-solving negotiations, collaborative lawyers emphasize that no
threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue. See GLOBAL COLLABORATIVE LAW COUNCIL, PARTICIPATION AGREEMENT 3
(2004), available at http://www.collaborativelaw.us/articles/GCLC_Participation_Agreement_With_Addendum.pdf.
Parties in collaborative law generally agree to disclose information voluntarily, without formal
discovery requests, and to supplement responses to information requests previously made with
material changes. See id. at 4. Many models of collaborative law require parties to engage jointly retained mental health and financial professionals in advisory and neutral roles—for example, a divorce coach, appraiser, and child’s representative—rather than as consultants or trial witnesses hired by one party but not the other. See John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L.J. 1315, 1321 n.21 (2003) [hereinafter Lande, Possibilities for Collaborative Law]; FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK: HELPING FAMILIES WITHOUT
GOING TO COURT 106-07 (2009). Sometimes, collaborative law participation agreements require
that negotiations take place in meetings in which parties are the primary negotiators and their
lawyers encourage focusing on underlying interests, sharing information, and brainstorming
solutions to problems. GLOBAL COLLABORATIVE LAW COUNCIL, supra, at 2-3. Typically, in order
to promote problem solving negotiations, collaborative law participation agreements provide that communications during the collaborative law process are confidential and cannot be introduced as evidence in court. See id. at 4-5; see also N.Y. Association of Collaborative Professionals, Participation Agreement, http://collaborativelawny.com/participation_agreement.php (last visited Oct. 23, 2009).

Collaborative Law Compared to Mediation:

Mediation and collaborative law are both valuable alternative dispute resolution
processes that share common characteristics. They do have differences that might make one
process more or less attractive to parties.

Both collaborative law and mediation offer parties the benefits of a process to promote
agreement through private, confidential negotiations, the promise of cost reduction, and the
potential for better relationships. Both mediation and collaborative law encourage voluntary
disclosure and an ethic of fair dealing between parties. Parties in both mediation and
collaborative law are likely to experience greater voice in the process of settlement than in a
judicial resolution (self-determination) and are more likely to be satisfied with the process as
compared to litigation. See Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on
a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885, 191 (1998).

Mediation and collaborative law do, however, have differences which might make
collaborative law more or less attractive to some parties as a dispute resolution option. A neutral is not present during a collaborative law process negotiation sessions unless agreed to by the parties, while mediation sessions are facilitated by a neutral third party. MODEL STANDARDS OF CONDUCT FOR MEDIATORS pmbl. (2005). As will be discussed infra, parties can participate in mediation without counsel but cannot do so in collaborative law. In many states parties do not have the protection of mediators being a licensed and regulated profession and bound by its rules of professional responsibility. Collaborative lawyers, in contrast, are licensed and regulated members of the legal profession. Mediators, as neutrals, cannot give candid legal advice to a party while collaborative lawyers can. Mediators, as neutrals, are also constrained in redressing imbalances in the knowledge and sophistication of parties. See, e.g., MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard II(B) (2005) (“A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”); RULES OF THE CHIEF ADMIN. JUDGE, 30 N.Y. Reg. 93 (July 30, 2008) (detailing the neutrality requirement for mediators in New York); MODEL STANDARDS OF PRACTICE FOR FAMILY & DIVORCE MEDIATION Standard IV (Symposium on Standards of Practice 2000) (“A family mediator shall conduct the mediation process in an impartial manner.”). Despite their limited purpose of representation in negotiating a resolution of a dispute, collaborative lawyers are not neutrals but are advocates for their clients.

The Origin and Growth of Collaborative Law:

The concept of collaborative law was first described by Minnesota lawyer Stu Webb
approximately eighteen years ago in the context of representation in divorce proceedings, the
leading subject area for collaborative law practice today. Stu Webb, Collaborative Law: An
Alternative for Attorneys Suffering ‘Family Law Burnout,’ 13 MATRIMONIAL STRATEGIST, July
2000, at 7, 7. Since then, collaborative law has matured and emerged as a viable option on the
continuum of choices of dispute resolution processes available to parties to attempt to resolve a matter.

Examples of its growth and development include:
• Roughly 22,000 lawyers worldwide have been trained in collaborative law. Telephone
Interview by Ashley Lorance with Talia Katz, Executive Dir., Int’l Acad. of
Collaborative Prof’ls (Feb. 17, 2009) (on file with reporter) [hereinafter Interview with
Talia Katz]. See Christopher M. Fairman, A Proposed Model Rule for Collaborative Law,
21 OHIO ST. J. ON DISP. RESOL. 73, 83 (2005) (noting that there are “more than 4,500
lawyers trained in collaborative law” nationwide (citing Jane Gross, Amiable Unhitching,
with a Prod, N.Y. TIMES, May 20, 2004, at F1)).
• Collaborative law has been used to resolve thousands of cases in the United States,
Canada, and elsewhere. Christopher M. Fairman, Growing Pains: Changes in
Collaborative Law and the Challenge of Legal Ethics, 30 CAMPBELL L. REV. 237, 239
(2008) [hereinafter Fairman, Growing Pains].
• The International Association of Collaborative Professionals (IACP), the umbrella
organization for collaborative lawyers, has more than 3,600 lawyer members. Interview
with Talia Katz, supra. (https://www.collaborativepractice.com/)
• Collaborative law practice associations and groups have been organized in virtually every
state in the nation and in several foreign jurisdictions. See International Academy of
Collaborative Professionals,
http://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups (last visited Oct.
24, 2009).
• A number of states have enacted statutes of varying length and complexity which
recognize and authorize collaborative law. See, e.g., CAL. FAM. CODE § 2013 (West 2004
& Supp. 2009) (defining “collaborative law process” and authorizing parties to agree in
writing to use of the process); N.C. GEN. STAT. §§ 50-70 to -79 (2007) (authorizing the
use of collaborative law as “an alternative to judicial disposition of issues arising in a
civil action”); TEX. FAM. CODE ANN. § 6.603 (Vernon 2006) (governing collaborative law
agreements for divorcing parties); TEX. FAM. CODE ANN. § 153.0072 (Vernon 2008)
(governing collaborative law agreements for parent-child relationship).
• A number of courts have taken similar action through enactment of court rules. See, e.g.,
MINN. R. 111.05, 304.05 (2008) (defining collaborative law and detailing scheduling and
application of additional ADR requirements); CONTRA COSTA COUNTY, CAL., LOCAL CT.
R. 12.5 (“Contra Costa County Superior Court strongly supports the use of the
collaborative law process . . . .”); L.A. COUNTY, CAL., LOCAL CT. R. 14.26 (detaining the
designation, contested matters, and termination of collaborative law cases); S.F. COUNTY,
CAL., LOCAL CT. R. 11.17(B), (E) (including collaborative law in its definition of ADL
procedures and specifying the requirements for its use); SONOMA COUNTY, CAL., LOCAL
CT. R. 9.26 (“Sonoma County Superior Court strongly supports the use of the
collaborative law process . . . .”); LA. DIST. CT. R. tit. IV, ch. 39, R.39.0 (defining
collaborative divorce procedures in Louisiana’s twenty-fourth judicial district court);
UTAH ADMIN. CODE r. 4-510 (2009) (defining collaborative law and outlining the
responsibilities of ADL providers).
• The first empirical research on collaborative law found generally high levels of client and
lawyer satisfaction with the process and that negotiation under collaborative law
participation agreements is more problem solving and interest based than those in the
more traditional adversarial framework. [See infra for a review of reported New Jersey collaborative cases.] See JULIE MACFARLANE, CAN. DEP’T OF JUSTICE, THE EMERGING PHENOMENON OF COLLABORATIVE FAMILY LAW (CFL): A QUALITATIVE STUDY OF CFL CASES 57, 77-78 (2005) available at http://www.justice.gc.ca/eng/pi/fcyfea/ lib-bib/rep-rap/2005/2005_1/pdf/2005_1.pdf [hereinafter MACFARLANE, EMERGING PHENOMENON]; see also MARK SEFTON, COLLABORATIVE FAMILY LAW: A REPORT FOR RESOLUTION 43-48(2009) (similar findings in first empirical evaluation of cases in collaborative law process in England and Wales); Julie Macfarlane, Experiences of
Collaborative Law: Preliminary Results from the Collaborative Lawyering Research
Project, 2004 J. DISP. RESOL. 179, 200 (2004). It found no evidence that “weaker”
parties fared worse in collaborative law than in adversarial based negotiations.
MACFARLANE, EMERGING PHENOMENON supra, at 57, 77.
• Former Chief Judge Judith S. Kaye of New York established the first court based
Collaborative Family Law Center in the nation in New York City. JUDITH S. KAYE, N.Y.
STATE UNIFIED COURT SYS., THE STATE OF THE JUDICIARY 11 (2007). In announcing the
Center, Chief Judge Kaye stated: “[w]e anticipate that spouses who choose this approach
will find that the financial and emotional cost of divorce is reduced for everyone
involved—surely a step in the right direction.” Id. at 12. The Center began operations on
6 September 1, 2009. Press Release, Ann Pfau, Chief Admin. Judge, N.Y. State Unified
Family Court Sys., Collaborative Family Law Center to Make Divorce Process Easier
New Center to Reduce Stress, Expense and Time Involved in Matrimonial Cases (Sept. 1,
2009), available at http://www.courts.state.ny.us/press/pr2009_15.shtml.
• The American Bar Association Dispute Resolution Section has organized a Committee
on Collaborative Law. American Bar Association, Collaborative Law Committee,
http://www.abanet.org/dch/committee.cfm?com=DR035000 (last visited Oct. 24, 2009).
The Collaborative Law Committee has an active Ethics Subcommittee engaged in the
codification of the standards of practice for collaborative lawyers. SUMMARY OF ETHICS
RULES GOVERNING COLLABORATIVE LAW intro. (Discussion Draft 2008) (discussing the
ways in which “[c]ollaborative [p]ractice is consistent with the rules of ethics for
lawyers” and is an important method for achieving fair settlements).
• Collaborative law is developing worldwide. Australia, Austria, Canada, the Czech
Republic, France, Germany, Ireland, Israel, New Zealand, Switzerland, the United
Kingdom, and Uganda all report collaborative law activity. Robert Miller, How We Can
All Get Along, DALLAS MORNING NEWS, Sept. 3, 2008, at 2D. For example:
o Collaborative law has grown rapidly in Canada since its introduction in 2000—
from 75 lawyers trained in collaborative practice to more than 2,800 in 2009.
Susan Pigg, Collaboration, Not Litigation: Many Divorcing Couples Are Sitting
Down Together, Along with Their Lawyers, To Hammer Out Agreements,
TORONTO STAR, Jan. 28, 2009, at L01.
• Many professionals from other disciplines, especially financial planning and psychology,
have been trained to participate in collaborative law. See Gary L. Voegele et al.,
Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better
Outcomes, 33 WM. MITCHELL L. REV. 971, 976 (2007) (citing Pauline H. Tesler & Peggy
Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your
Family, Resolve Legal Issues, and Move on with Your Life 41-50 (2006)).\
· Since the Uniform Law was issued, the list of countries in which collaborative law is practiced has grown, including the following:
Australia
Austria
Bermuda
Canada
Czech Republic
United Kingdom
France
Germany
Ireland
Israel
Italy
Netherlands
Switzerland

Collaborative Law’s Benefits to Parties, their Children and the Public:

Experience to date indicates that collaborative law is a valuable dispute resolution for
those parties who choose to participate in it with informed consent. Like other alternative dispute resolution processes, collaborative law reduces the costs of dispute resolution for parties and emphasizes the importance of party self-determination. Collaborative law also has significant benefits to the public by saving scarce judicial resources, in promoting peaceful, durable resolution of disputes and a positive view of the civil justice system by participants and the general public.

The needs of children are particularly implicated in divorce cases, as children exposed to high levels of inter-parental conflict “are at [a higher] risk for developing a range of emotional and behavioral problems, both during childhood and later in life.” John H. Grych, Interparental Conflict as a Risk Factor for Child Maladjustment: Implications for the Development of Prevention Programs, 43 FAM. CT. REV. 97, 97 (2005); see also INTERPARENTAL CONFLICT AND CHILD DEVELOPMENT: THEORY, RESEARCH, AND APPLICATIONS (John H. Grych & Frank D. Fincham eds., 2001); Joan B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 39 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 963-64 (2000).

III. FAQs (from the International Academy of Collaborative Professionals Web Site)
How does Collaborative Practice actually work step by step?
When you decide on a Collaborative Practice divorce, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your lawyers. Additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final divorce agreement.

What is a Collaborative Team?
A Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be simply you and your Collaborative lawyers. In addition to your Collaborative lawyers, you can choose to include a neutral financial professional, divorce coaches, a child specialist or other specialists you and your spouse believe would be helpful. Your "Collaborative team" will guide and support you as problem-solvers, not as adversaries.

Is Collaborative Practice a faster way to get a divorce?
Your situation determines how quickly your divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving—instead of blame and grievances—there’s an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce.

How does Collaborative Practice focus on the future?
Divorce is both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family’s goals for a smoother transition to the next stage of your lives.

http://www.collaborativepractice.com/

IV. What the Clients have said about their Collaborative Divorce (from IACP Client Experience Survey, 2007)
(Study results based upon 84 responses representing 71 cases)
Who are the Survey Respondents and how do they learn about Collaborative Practice?
Sixty percent (60%) of the 84 clients responding to Client Experience Surveys as of August 24, 2009, had been married over 15 years and 84% of them had been married 11 years or longer. Eighty-five percent (85%) of both clients in a proceeding were in their first marriage. (Approximately an equal number of males and females responded.) Most had worked with a mental health professional before entering the Collaborative Practice process; 62% of the clients had been in marital or couples counseling. Yet, only 11% of them heard first about the process from a mental health professional; an equal number learned about it from the person who served as their collaborative lawyer. Twenty-six percent (26%) of clients heard about the process from their spouse, 18% learned about the process from a friend, and 18% by use of the internet. The first collaborative professional with whom 91% of the clients met was one of the collaborative lawyers who served on the case; 85% met first with their own collaborative lawyer.
What other processes did the clients consider before choosing Collaborative Practice?
Eighty-five percent (85%) of the clients were informed about the traditional court process/litigation as an option prior to using the Collaborative process, but only 29% considered using the option. Fifty-nine percent (59%) of clients were informed of mediation as a process option, but only 18% considered using mediation. The option most often considered was "doing it yourself," considered by 46% of the clients, with an additional 48% of clients having been informed of the option.
Why did the clients choose Collaborative Practice over the traditional litigation process?
The most commonly cited reasons were their expectations that the Collaborative Practice process would yield them a better outcome, would better focus on what was most important to them and would be a less confrontational, adversarial process. They also expected it to be more respectful, less stressful, and provide more control to them over the outcome.

How satisfied were the clients with Collaborative Practice?
Seventy-eight percent (78%) were somewhat satisfied or extremely satisfied with Collaborative Practice overall, 77% were somewhat or extremely satisfied with the process, and 72% were somewhat or extremely satisfied with the outcome. Eighty percent (80%) would probably or definitely recommend the process to others.
What did the clients think about the fees?
Eighty-three percent (83%) thought their lawyer's fees were somewhat reasonable or very reasonable. They were not asked to rate the other participant's legal fees, because they would not have enough information to evaluate them. Of those whose cases involved another discipline (40% involved one or more mental health professionals and 55% involved a financial professional), 80% with mental health professional(s) rated those fees as somewhat or very reasonable, and 76% with a financial professional rated their fees as somewhat or very reasonable.
What was most satisfying about the services rendered by the professionals?
The client's lawyers, the mental health professional(s), and financial professional received high ratings (more than somewhat satisfied) for their listening and maintaining respect for the clients and the client's viewpoint. Additionally, the highest ratings by discipline were: the client's lawyer, explaining matters so that the client understood what was happening at each stage of the case; the financial professional, maintaining neutrality, when serving as a neutral; and the mental health professional, managing communication between all team members.
http://www.collaborativepractice.com/_t.asp?T=Survey
V. QUESTIONS LAWYERS HAVE ABOUT COLLABORATIVE LAW
1. Why will most clients benefit from collaborative law?
Most attorneys handling divorce, custody and other family matters quickly realize that the law doesn’t deal with relationships. Traditional litigation does not help clients make the necessary transition to post-judgment relationships for them and for their children. Often there are issues that are not resolved as part of a final settlement. We resolve what needs to be resolved but don’t deal with issues that the parties will be faced with in the future. Moreover, the process doesn’t provide the parties with the skills necessary to negotiate in the future. Any lawyer who has tried a divorce case to conclusion realizes that our trial judges decide issues that need to be decided now and do not decide issues that the parties will be faced with in the future. This can create needless litigation in the future.
The process of handling a divorce collaboratively encourages parties to focus on relationships as well as the substantive issues. The team approach to dealing with the case permits the lawyers to deal with legal issues and others with expertise in financial matters and mental health to assist in these areas.
Having a financial expert on the team enables the parties and lawyers to obtain assistance from a person with financial expertise. Mental health professions acting as coaches assist clients in learning how to deal with child related issues. For example, in traditional litigation we focus on a parenting time schedule but not how to deal with parenting time in the future when the children’s needs may change. The mental health professionals are not treating or assessing the clients. They are working with them to achieve resolutions that will benefit the entire family. Involving mental health experts as team members also allows the lawyers to focus on legal issues without ignoring important and critical family issues. The parties can deal with child related issues with someone trained to assist in these areas. The mental health coach can also help people deal with the inevitable conflicts that arise in more constructive ways.
Lawyers also realize is that it is not possible even in the most comprehensive settlements and Agreements [Property Settlement Agreement/ Marital Settlement Agreement] to anticipate all the issues that can arise post-judgment. The team approach in a collaborative case makes it easier for the clients to seek assistance in the future from one or more of the team members.
2. Are there warning signs that the collaborative approach won’t work?
Collaborative law is not the answer in every case. The parties must be mature and want to resolve the issues. They also must be willing to provide financial and other information. A client who is hell bent on sabotaging or delaying the divorce as long as possible is not a good candidate for the collaborative process. Neither is the party who has hidden income and assets and has no intention on disclosing financial information to his/her spouse.
I think that most collaborative attorneys will agree with me that the team will face significant, and perhaps insurmountable problems if one party has a borderline personality, is anti-social or narcissistic or in cases where there is spousal abuse. There can also be significant problems if one party is an active alcoholic or drug addict.
We all have experienced high conflict clients. I personally also think that the client who insists on total control or is extremely angry, manipulative or completely unrealistic about the outcome if a case is tried is not a candidate for collaborative law.
It is important for an assessment to be made as to whether the case should proceed collaboratively. This doesn’t have to be done until after the attorneys and clients meet together at the initial meeting. If either attorney or one of the parties thinks there will be a problem they can agree to proceed cooperatively rather than collaboratively.
3. Why should attorneys consider becoming trained as collaborative lawyers?
Attorneys need collaborative training to become skilled in this way of handling divorce cases. Although collaborative practice in New Jersey is relatively recent, significant numbers of attorneys as well as financial and mental health professionals are being trained. The number of parties participating in the collaborative process is increasing. Collaborative law, while hard work, is less stressful than traditional litigation. Working as a team allows attorneys to assist clients in coming up with creative solutions that works for their family.
4. Do collaborative lawyers have a national and/or state organization?
Yes. The national organization is the International Association of Collaborative Professionals [IACP]. In New Jersey there are a number of regional groups that meet regularly. In this area the New Jersey Collaborative Law Group, a group of lawyers, mental health professionals, financial professionals and associate members in other fields was formed in June 2008. We meet monthly. This meeting is an opportunity to meet and talk with other collaborative professionals. We also devote a portion of most meetings to a seminar on various topics.

The members of the NJCLG also meet in smaller groups [PODS]. Our POD meets regularly in Hunterdon County. Most of the members of the New Jersey Collaborative Law Group are from Central New Jersey but there are a few members from North Jersey.
The IACP website is: www.collaborative practice.com. There is significant educational information and forms available to members. This is also a website for potential clients to obtain information about collaborative law.

Our New Jersey Collaborative Law Group website is: www.centraljerseycollaborative law.com. The website is undergoing significant changes. All of the members of the group are listed. There will also be useful information on the site for potential clients about collaborative law.

©Kilcommons 2010

2010 Legal Professional Award Remarks

2010-09-24T07:10:00.000-07:00

From Collaborative in Jersey...
I was gratified and honored to be presented with the Legal Professional of the Year Award by the Hunterdon County Bar Association on September 22, 2010. Here is the substance of my remarks upon accepting the award:

LEGAL PROFESSIONAL AWARD REMARKS
Hunterdon County Bar Association
September 22, 2010

After 23 years of practicing law, there is one observation I would like to press home, especially to you young attorneys. That is to practice without fear.

We have taken a solemn oath to defend not one, but two constitutions. So, much is expected of us by American society. For this reason, you should not be concerned whether taking on a particular client will upset certain people or perhaps negatively affect your legal career.

With that in mind, let me note a few legal professionals I look up to. One is John Adams, who, although a recognized up-and-coming leader in the Sons of Liberty movement and rising star in the Boston Bar, chose to represent the British soldiers (March, 1770) indicted for murder in the infamous Boston Massacre.

Adams practiced without fear.

In 1846, another attorney was involved in a highly charged murder trial in the small city of Auburn, New York. The accused, a 23 year old young man by the name of William Freeman entered the home of a wealthy farmer, John Van Nest, knifing to death Van Nest, his pregnant wife, another small child and the wife’s mother. He was apprehended within hours. He immediately confessed his guilt, was observed laughing uncontrollably and showing no remorse for the horrific crimes. He had just been released from prison.

In the hours prior to the arraignment, the members of the Auburn bar were threatened with violence if they undertook Freeman’s defense. During the arraignment, before a packed and emotional gallery, when the judge stated “’Will anyone defend this man?,’ one lawyer stepped forward and said “May it please the Court, I shall remain counsel for the prisoner until his death.”

This attorney had the most to lose of any in the Auburn bar. He was William Henry Seward, and he had just completed two terms as governor of NY, but still had national political ambitions. Almost everyone was angry with him for taking this case: his father-in-law, who was another judge in that county; and his political mentor, who believed he was throwing away his political career. The only person whom stood by him, and thought he was in the right, was his wife, Frances, who assured her sister that “he will do what is right. He will not close his eyes and know that a great wrong is perpetrated.”

Seward spent weeks investigating the murders (btw, Van Ness was a friend of Seward’s). During the investigation he discovered that Freeman had been wrongly convicted five years earlier, and was repeatedly beaten in prison leaving him deaf and deranged. This evidence was presented to the jury and supported by the testimony of five physicians, but the jury rejected the insanity defense and found Freeman guilty of the murders.

Seward’s stirring words in defense of Freeman were carried by newspapers throughout the country. He was later elected twice to the US Senate, ran for president and was a successful Secretary of State for two presidents. He played a key role in the abolition of slavery itself.

Seward practiced without fear.

To put Seward and Adam’s decisions in context today, imagine how our community would react to a member of this bar agreeing to represent a group of embattled Americans in their quest to build a house of worship in Lower Manhattan? Yet, this is the self-sacrifice that our society sometimes expects of attorneys.

Keep in mind that we are still held in esteem by an enlightened society. Despite some polls and put-downs by pundits, one of the most popular 20th C. literary characters remains an attorney: Atticus Finch. Author Harper Lee’s main character from “To Kill a Mocking Bird” is still the model of integrity for lawyers.

Fair or not, many clients expect us to be Atticus Finch: that we will aggressively argue their causes and pursue due process without fear of retribution to our livelihoods or person.
The rigorous exercise of our oath is a high calling and at times a burden and stressful. But, I can tell you from my experience that practicing without fear will give you greater satisfaction as a professional and I recommend it to all here. Not only does our community expect it of us, but the health of our Republic depends upon it as well.
Thank you.

Follow-up on Hunterdon County Backlog and Misc. News

2010-09-16T12:44:00.000-07:00

During a meeting of the Bar Association's Family Law Committee yesterday, our new presiding Family Division judge, Hon. Hany Mawla, reported that there are now 93 cases in backlog (equating to a 2 plus year trial delay). He intends to cut this number in half by the end of the year through vigorous, hands-on, involvement in cases, keeping the court house open late two days a week for settlement conferences, and calling two cases at a time for trial. In addition, he will have the availability of a back-up judge to assist. If this aggressive process is successful, Hunterdon County's current standing among all 21 counties (now dead last in family case backlog) should be greatly improved by spring 2011.

The county Bar Association has institued a new committee: ADR, which will handle private arbitrations, mediation and collaborative law issues. There is a recognition by both Bench and Bar that more cases need to be resolved through ADR to avoid calendar back-ups such as the one recently experienced.

The New Jersey Collaborative Law Group is revving up after a short summer break. The near-term goal is to identify best practices for collaboration with the goal of smoothing out practice wrinkles. There has been a recognition that members of the group are following different procedures and, perhaps, employing different styles, which may have unnecessarily complicated collaborative cases. Overall, the feed back from collaborative clients is positive, but more needs to be done to improve quality and continuity of professional services.

I want to congradulate my partner, Robert Shanahan, on his installation next week as Hunterdon County Bar President. Bob has already made a positive and significant impact on the association through his attention to the committee chair assignments.

Finally, I am very gratified to have been named the Legal Professional of the Year by the Hunterdon County Bar Association. It is a good year for the firm in many ways.

Thanks for reading.

© Kevin M. Kilcommons, 2010

Court Still Jammed, But Collaborative Teams Forming to Meet Needs

2009-09-11T12:22:00.000-07:00

In May, I wrote that the Family Court in Hunterdon County had announced that it was not able to try cases until sometime in 2010 (See "Are We the Canary..."). Thereafter, the presiding family judge for this judicial viscinage, Judge Julie Marino, announced to the Bar that she was assigning judges from Somerset County to assist with is County's case backlog. In addition, the judge ordered motion return dates to every other week, rather than every week as had been the custom for some time (thus permitting judges to hold hearings at least two additional days a month). However, the Family Court still stuggles to meet the demand of its varied and complicated calendar, which involves juvenile, domestic violence and adoptions, along with the divorce and post-judgment divorce applications. Complicating the situation, was the absence of one judge this summer due to illness. The litigators are now experiencing long delays in the resolution of motions, in addition to obtaining trial dates for unresolved cases.

Another change ordered by Judge Marino involved the relocation of the Early Settlement Panel conferences, in which volunteer attorneys meet with divorcing couples and their attorneys and attempt to work-out settlements. Now, Hunterdon County litigants will have to travel to the Somerset County Courthouse in Somerville for these conferences, thus adding additional costs to their legal expenses, due to attorney travel time, and expenses incurred in fuel and parking.

On a bright note, several experienced Hunterdon County attorneys, as well as local mental health professionals, were certified as collaborative practitioners by the International Academy of Collaborative Professionals ("IACP") http://www.collaborativepractice.com this past June in Clinton. Many of these professionals joined the Hunterdon County sub-group of the New Jersey Collaborative Group http://www.newjerseycollaborativelawgroup.com/, which I hosted here at my firm in July and August. This is an energtic and dedicated group of professionals and very eager to find a better way to assist families in crisis other than through traditional litigation. Shortly after our August meeting, the Hunterdon County Bar Association's Family Law Committee formed a sub-committee devoted to collaborative family law. Many thanks to Roz Metzger, Family Law Committe Chair, for her efforts in establishing this sub-committee.

With the admission of these professionals into the IACP and soon the New Jersey Collaborative Law Group, Hunterdon County now has in place a nacent working team of collaborative professionals. By choosing collaboration over litigation, clients will likely have their divorces resolved quicker, with less cost and stress to the family than the traditional litigation route, and it can be accomplished privately. Bear in mind, that successful litigation (defined as carrying a matter from the filing of a complaint to settlement or judgment following a trial) is entirely dependent upon a court system, which is now unable to serve the needs of all Hunterdon County residents. Perhaps this is the reason so many family practice professionals have obtained collaborative training in the past year.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

See kscounsel.com for my web site.

© Kevin M. Kilcommons, 2009

News Brief

2009-06-24T18:42:00.000-07:00

As a follow-up to my May post, the Family Division has announced that two judges will be assigned the principal duty of conducting trials all summer and until the growing backlog is reduced. This announcement by Judge Julie M. Marino, presiding Family Part judge, was welcome news to the family bar.

On June 13 and 14 Linda Piff led another successful Basic Collaborative Skills seminar to nearly 30 professionals at the Clinton Holiday Inn. The newly certified attorneys (and I assume the several mental health professionals present) were very excited to become involved in a collaborative group, or form their own, and will be meeting here in my office soon to discuss their options. The New Jersey Collaborative Group members were also excited by the large turnout for Linda. Group president, Ken Rempell, noted that this was the first county bar association in New Jersey to sponsor collaborative training.

Are We the Canary in the Mine Shaft?

2009-05-04T14:51:00.000-07:00

Last week, I had the opportunity to mediate as a volunteer for the Superior Court in Hunterdon County in what is called “the Blitz.” This is a process where the oldest and most difficult divorce cases are brought in by the Family Division to meet with a panel of two attorneys for intensive mediation. The Blitz is intended to be more involved than the Early Settlement Panel (“ESP”) conferences, and follow the economic mediation, which is also required if the ESP is unsuccessful. My panel was assigned four cases that all averaged two years on the docket from date of filing.

The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?

Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?

Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.

There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.

The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.

If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.

Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.

Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.

Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2009

Court: No Trials or Hearings

2009-03-30T14:42:00.000-07:00

It's come to this said state, due to the $50 Million Dollar cut in funds to the New Jersey Judiciary, our county, Hunterdon, will be reduced to just one judge for all family-related matters. Judge Ann Bartlett announced from the bench this morning that due to the appointment freeze on judges, and the retirement of a county judge at the end of the month, she will not have the ability to conduct trials or evidentiary hearings. She said it would be two weeks before she would be able to schedule a trial. I suspect that it will be longer, and the stress to litigants due to this delay will be tremendous.

This situation effects only this county, but the drastic step taken to cut spending may be repeated in other counties, and perhaps other states. If so, couples must consider whether they will even be able to obtain a resolution of their divorce from the courts in a reasonable period of time. Therefore, now, more than ever, collaborating resolutions (or mediation/arbitration) to family disputes may be a necessity due to the current economic turmoil.

The courts will always find the time to give attorneys time to present a settled case, usually taking us fifteen minutes. At least in Hunterdon County, for the foreseeable future, traditional litigation will not only be expensive but may not lead to a timely resolution of your divorce.

There is a better way to divorce-- through collaboration. What was created by Stu Webb, Minnesota, in 1990 is now practiced in Canada and Europe. The reason is simply because people understand that this method of divorcing makes the most sense, especially today.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2009

Downward Modification in a Downward Economy

2009-02-20T14:44:00.000-08:00

I was in the family court here in Hunterdon County two Friday’s ago. It was motion day and the courtroom was packed with attorneys and a few pro se litigants ready to make their arguments to the judge about why she should alter her preliminary decisions, which are typically issued by fax the previous afternoon. What struck me about that morning, other than the fact that it was the busiest I had seen a family court on a motion day in some time, was that all the motions I heard involved applications to modify judgments as a direct result of the down turn in the economy. Such are the times.

Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?

More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.

The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.

The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.

Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.

Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2009

Trial by Battle

2008-10-31T13:46:00.000-07:00

Before any formalized law, such as the ancient Irish Brehon codes, man simply resolved differences by the club, spear or sword. Later, we evolved to what became known as “Trial by Battle” in the early centuries of the first millennium. This process involved the accuser and the accused facing each other in a formal duel. “It was believed that God would be on the side of the innocent.” Encyclopedia Britannica In fact, if during the brawl the accused killed or caused the accuser to withdraw the charges, then he was acquitted. But as in all things legal, there was a loophole: if he survived the entire day’s combat, he was, likewise, acquitted. How far we have evolved at resolving differences!

For the last 500 plus years, our society has benefited from the court system, which, in the matter of divorce, involves an official acting in the capacity of the giver of law and trier of fact—a judge. But we may have come to the point in the evolution of society where the traditional court, and its centuries’ old system of adversarial law, has been surpassed. The traditional system, involving invasive, public, costly and emotionally damaging acts to resolve marital disputes now seems as barbaric as the feudal form of dispute resolution by the sword.

A change is needed. In fact, the judges will tell you that no one knows the facts in a case better than the parties and their attorneys. This is the usual warm-up talk our family judges give before sending the parties off to mediate, which is mandatory before the court will give our clients here in Jersey a trial date. They are right, of course. A single person sitting for hours, days or even weeks presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is a given fact, and is due to the reality that marital breakups are too complicated to resolve by just one person. Some issue or issues are likely to be left unresolved or one or both parties will be so upset by the decision, that years of post-judgment litigation is a certainty.

But the change is here, and it is called collaborative law. It presents a better and more dignified way in which to resolve marital disputes, and with the least amount of damaging stress to the family. In fact, this evolved form of dispute resolution has already spread through Canada, Europe and into South West Asia. (BTW: Did you read that the Richie’s were going to collaboration? Actually, I thought that Madonna would have preferred public exposure (ugh!), but she is a mom first and knows that’s not the way to go.) Collaboration is quickly growing as the first choice for dispute resolution among couples, because people realize that this is a common sense way to handle the most sensitive issues we have within our families.

If we litigators, whom have been on the front lines all these years and have witnessed the pain of divorce on all family members, are telling you that the system needs to change, then take our free advice and choose, if you must, a better way to divorce.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2008

A Missed Opportunity

2008-09-23T12:02:00.000-07:00

I have noted before that my parents divorced just six years ago. What I did not mention was that shortly after Mom and Pop's traditional divorce, she was clinically diagnosed with Alzheimer’s disease. During the divorce, I had sensed something was wrong with Mom and so did Pop, but Mom had gone to an attorney and started the divorce process premised upon her belief that that he was unfaithful, stealing from her, etc. There was nothing we could do, because their divorce was in the "system" and pretty much out of control. The final fees associated with their divorce action exceeded $40,000.00. There were no motions or trial expenses added to the final sum for this uncontested divorce.

Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.

In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage's break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.

What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team's mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.

Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP's time and expertise: nor the attorneys' or the judge's. What benefit is there in this traditional process to the couple or their children?

Many collaborative law groups, including mine, the New Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.

There is a happy ending to Mom and Pop's story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words to him the day before she passed were "thank you."

Thanks for reading.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact you’re county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2008

Central Jersey Collaborative Law Group Forms

2008-07-10T03:57:00.000-07:00

On June 16, 2008, the Central New Jersey Collaborative Law Group (CJCLG) was formed making it the fourth collaborative practice group in New Jersey (the others being Jersey Shore CLG, North Jersey CLG and the Alliance CLG). There are thirty members in this new group. The CJCLG is an interdisciplinary organization with members coming from the legal, mental health and financial professions. During the organizational meeting, the membership elected Joe Noto and Ken Rempell for president and vice-president, respectively.

The majority of the CJCLG membership practice in Hunterdon, Somerset, Morris, and Union Counties.

I too am a member of this nascent group and will report further on our progress. Our first mission is to inform the public about the collaborative option and its benefits compared to other forms alternative dispute resolution.

A comparison of mediation to collaboration

2008-05-15T11:32:00.000-07:00

Most people are aware that mediation is a process in which usually one mediator attempts to facilitate the two separating parties toward a framework for a settlement. Issues such as custody, parenting time, equitable distribution of assets (and debts) and alimony are addressed in the course of mediation with the goal of arriving at a Memorandum of Understanding (“MU”). At this point, if not before, the mediator should advise the parties to retain separate attorneys for the purpose of reviewing the MU and advising them separately concerning the terms of the agreement and whether they should proceed with the drafting of a Property Settlement Agreement reflecting these terms (plus the usual boilerplate language typical of settlements, but not required in the MU).

In many cases, particularly where the separating parties are able to effectively communicate and have equal bargaining strengths, this traditional form of Alternative Dispute Resolution process is effective. However, there are pitfalls with mediation that should be considered before making the choice:

Unequal Bargaining Skills.

In situations where Spouse A is traditionally the dominant mate, and Spouse B is unable to change the dynamic and, uncharacteristically, assert themselves, the mediation is not likely to result in an equitable and fair settlement. Under these circumstances, the mediator may try to counterbalance this difference in personalities, but they do so at their peril.

The mediator’s essential leverage is gained through the mutual trust earned from the parties, and the mediator achieves this in great part by remaining objective and neutral. Also, trust is built by displaying keen knowledge about the divorce process as well as life issues faced by both parties (parenting, career, health, etc.). It is the mediator’s job to identify the issues to be resolved and facilitate the parties to settle their differences by working together. However, if the mediator attempts to side with one party due to a perceived inability by that party to express their desires and goals, then the objectivity is lost-- as is the trust of the other party.

The Mediator is Not Your Advocate.

Because the mediator’s objectivity is key to a successful mediation, he/she cannot give the parties legal advice specific to their interests. In fact, there is great debate over whether a mediator can or should give any legal advice. The safe course is for each party to engage in separate counsel, whom would be available for conferences outside the mediation. Specifically, a party may need to know if their demands (or the other spouse’s position) concerning a specific issue are unreasonable and would likely be rejected by a judge in that jurisdiction if the issue was litigated. This is advice that the mediator cannot provide without ruining their objectivity, as well as credibility.

These are two of the most problematic issues involved in mediation.

In the collaborative process, these potential problems are avoided.

First, each party will retain an attorney trained in collaborative law. After the collaborative counsel interview the parties and conclude that they are good candidates for collaboration, then each attorney signs a participation agreement committing them to collaboration and agreeing not to represent either party should the process break down. The parties each have counsel attend the sessions to ensure that the playing ground remains level for both parties, despite the differences in the clients’ personalities. The attorneys are trained to advocate without inflaming the other party. Also, being on the scene, the attorneys can confer privately with their clients and discuss the relevant legal precedents, and the propensity of our New Jersey judges regarding the issues under negotiation. This may save the parties time, and therefore money, rather than having to suspend a mediation session to then confer with an attorney and then resume at a later date.

Second, consider that every mediation should involve two attorneys at some point, either throughout the process or at the end when a MU is circulated. Involving the attorneys in the collaborative Alternative Dispute Resolution process from the start will likely produce a stronger agreement in less time, because the counsel will have been involved in every step of the negotiations, rather than relying on snippets of the discussions from their untrained client, which can be a challenge to interpret. Moreover, if the attorneys are not involved until after the MU is completed, and it turns out that there are one or more significant issues which do not sit well with either the parties’ attorneys, then convincing the parties to divert from the terms of the MU may lead to harsh feelings and accusations of bad faith. This result will often lead to litigation and a waste of the money spent in the mediation process. Remember, anything discussed or agreed to in the mediation sessions will not be admissible in court.

These two differences are what make collaborative law so effective for many families. The critical goal of the collaborative attorney is to assist the client in arriving at a fair and equitable settlement while maintaining civility, so that both ex-spouses retain enough mutual respect and trust to enable them to converse after the divorce, which is so critical when there children yet to raise and many, many child rearing issues to resolve in the future.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/

© Kevin M. Kilcommons, 2008

A litigator's view of Collaborative ADR

2008-04-10T20:15:00.000-07:00

In February 2008, I attended a two day seminar hosted by the Jersey Shore Collaborative Law Group. Attorney Linda Piff headed the team presenting the Basic Interdisciplinary Collaborative Family Law Training up. This seminar was an eye opener for me, a litigator with twenty-years' experience. It became clear to me that collaborative law as a form of alternative dispute resolution (ADR) was not a fad, and will gain in popularity.

My background in family law is typical of practitioners in New Jersey. I have a variety of marital dissolution, post-judgment, domestic violence and custody matters, which I handle in central New Jersey; principally, in Hunterdon and Warren Counties. I have experienced family law practice becoming more complicated over these years, which is a combination of the evolving family unit and the increased bureaucracy of the Superior Court. Added to this mix are the increased numbers of litigants due to the fragility of marriages, or the post-judgment disputes between couples over child support, alimony and college-related issues.

Although the judicial bench and bar associations have worked hard to streamline the system, such as implementing court ordered mediation, often more than once in a given law suit, the fact remains that litigating any of these family issues is time consuming and very expensive. Very often the parties come away with little resolution, upset and less inclinded to communicate with their ex-spouse, which only sets the stage for more trouble and another round of legal blood-letting at a later date.

I witnessed all this first hand when my parents were divorced late in life here in the State. I also experienced the pain of a child of a divorce, even though I was in my early 40’s at the time. My family doctor counseled me that all children, regardless of their age, suffer from the fallout of divorce.

Having this background, I have attempted to address issues concerning children up-front in litigious cases. In most cases, my adversaries are receptive to this approach and we work to implement child support and time sharing issues as soon as possible to cushion the impact of the break-up on the young ones. However, all too often issues concerning the young people become extremely contentious and no doubt trickle down to them through direct disclosure by a parent, which is never acceptable, overhearing arguments or just sensing the parents’ anguish. Make no mistake, a divorce or post-divorce dispute has a very great impact on every child. Some are stronger than others and many learn to cope alone or with siblings, but that is no way to grow up. On this everyone can agree, parents and attorneys. This is often where the desire to collaborate a resolution to a break-up begins. For the kids.

So, what is the answer to this dilemma? We cannot expect divorce to stop. Moreover, the state legislature and taxpayers will not support the number or quality of judges needed to handle all these difficult matters. In the future, the court’s files may become accessible on-line, leading to less privacy than we have at this time. (The Federal Court has gone to electronic filing, so it is only a matter of time before the states follow suit.)

ADR has been in existence for many years and is often the answer for families who do not want to undergo the crucible of the legal system. Mediation has been the most common ADR utilized by families to this point. However, I believe that the collaborative law alternative will be just as popular, if not more so.

I will pick-up on the differences between mediation and collaboration in the next article. Thank you for reading through.

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to www.collaborativepractice.com

© Kevin M. Kilcommons, 2008