The Role of the Attorney in Collaborative Law

“Three legs of a stool” uphold Alaska’s model for Collaborative Law.

We’ve talked about two of them already:

1. the mental health professional and
2. the neutral financial professional.
3. The attorney represents the final “leg.”

   Team Selection

   Often, the attorneys will select the other team members to form the Collaborative team. And sometimes, they may even influence selection of the Collaborative attorney to assist the other client. You might think that sounds a little odd, but in the context of Collaborative Law, it’s simply a practical matter. If an attorney knows they can work well with another attorney through the Collaborative process, it makes it easier to share the efforts. Both attorney's can be assured that the other will stay true to the interest-based approach* of Collaborative Law.

   Along the same lines, the attorney can provide input in deciding whether to involve one or more third party specialists to aid the team effort, like a child counselor or therapist for one of the parties or perhaps an additional financial professional to perform a niche task, such as developing a budget or performing an employment analysis.

   *What Does ‘Interest-Based Approach’ Mean?

   While, most litigation-based cases have an “issue dispute focus,” meaning the process is focused on who gets the house, who gets the kids, how the pension will be divided, etc. The interest-based approach tries to focus the client on what their bulls-eye is, like what arrangement of custody and property will support the immediate and long-range goals they are looking to satisfy in their case.

   Now, let’s look at a common example to illustrate this:

   In regular litigation, when a couple is trying to determine custody of the kids, one party will say, “Well, it should be 50-50.” The question to ask in the context of Collaborative Law is, “What does that really mean and even if that is defined, what connection does it have to ensuring an optimal arrangement for the kids?” Collaborative Law would look at the custody schedule (which can be classified as an issue) and try to identify the underlying interest, which is: What arrangement best suits our children now and for the foreseeable future?

   Initial Preparation

   At the start of the Collaborative process, the attorney’s role is to help the client make an informed choice and it includes explaining to the client:

   • What Collaborative Law is;
   • How the six-way team model (used in Alaska) works and;
   • What other “ADR” (Alternative Dispute Resolution) choices are available (litigation; mediation(private/court-based); court-based judicial settlement conference; direct negotiation with/without attorneys).

   The attorney also helps the client prepare for both the initial and future six-way team meetings by explaining the mechanics, clarifying goals, answering legal questions/concerns, monitoring completion of the client’s “homework”, helping the client deal with difficulties they may be experiencing that are hampering their participation/compliance, and managing client expectations of time, money and the end-result.

   Throughout the Process the attorney’s role complements the roles of the other professionals throughout the process, in the following ways:

   • Ensures that both clients honor full disclosure.
   • Actively participates in all of the six-way team meetings, as well as, the “debrief” meetings held by the professional team members.
   • Helps the client maintain an interest-based focus to resolve the issues of the case.
   • Avoids “litigation talk.” Part of the role of the attorney is to not create a focus on what the parties would or would not get if they litigated. Even guessing at what a court result would be creates a “hammer” that dilutes the interest-based approach and garners distrust in the collaborative effort.
   • Mirrors the right emotional composure. As with the other professionals involved in the process, it’s important for the attorney to not poison the emotional well.
   • Upholds the team atmosphere. A key role for the attorney is to send a message to the other client that they are not the enemy. For example, in response to the other client during a meeting, an attorney may repeat (or “reframe”) what that person says, in order to demonstrate that the attorney is listening and “gets it.” Part of this role also involves preparing your own client ahead of time, so that they understand their attorney will be doing this during the meetings and has not switched sides.

   In the Final Stages

   Because, the attorney also completes the final “court” steps of the process, in that they allocate and perform the drafting of (or otherwise acquiring) necessary court documents to provide to the judge. These include, but are not limited to:

   • A Decree
   • Findings of Fact and Conclusions of Law
   • Custody Settlement Agreement
   • Property Settlement Agreements
   • Specialized Orders (such as QDROs for pensions; DR-300 child support orders)

   Finally, the attorney will also handle the mechanics of arranging the “uncontested hearing”. (as soon as possible, so that the parties can move on in a reasonable time frame.)

   We’ll talk in the future about non-team “specialists”: professionals who can be used to aid the collaborative process when necessary.