COLLABORATIVE LAW IN MASSACHUSETTS

Origins of Collaborative Law Practice
Collaborative Law Practice ("CLP") was the invention of a Minneapolis family law attorney, Stuart Webb, who in 1990 decided that he would no longer take cases to court. Instead, he founded a group of lawyers—the Collaborative Law Institute—who agreed to take cases solely for purposes of settlement. In 15 years, the use of CLP has grown rapidly. CLP groups exist in almost all states in the U.S. and most of the Canadian provinces.

Although CLP has been used widely in the area of family law, Massachusetts lawyers and other professionals are expanding its use to virtually all areas of legal disputes, including:

• divorce and separation
• business disputes
• employment issues
• probate cases
• insurance cases
• construction disputes
• and much more

Achieve the Best Possible Outcomes: Fully explore and develop "win-win" and "out of the box" solutions
The Collaborative Law process is appropriate for most disputes. The following list suggests many possible applications:

• Contracts with customers/suppliers
• Family- and closely-owned businesses
• Professional practice break-ups
• Estate contests
• Insurance disputes
• Intellectual property disputes
• Real estate disputes in Construction, Development, Finance, Landlord/Tenant, Permitting, Boundary Lines
• Employment problems
• Securities disputes
• Business tort cases
• Regulated industries
• Environmental law
• Financial services
• Utilities regulation
• Insurance regulation
• Transportation industry
• Special Education

Professional liability matters (Malpractice in medicine, law, psychiatry, accounting, architecture, engineering and consulting)

The list could go on and on. Collaborative Law is not limited by the type of case. It is limited only by the willingness of the parties to work toward settlement in a pro-active, intentional way.

Trust and Estate disputes frequently benefit from a collaborative approach. The parties generally know one another, and are often members of the same family. Litigation is likely to damage the ongoing relationships, while a collaborative approach provides an opportunity to build those relationships.

Statutes and the courts encourage compromise of trust and estate disputes, and permit reformation of estate planning documents to give effect to the testator's intent. Collaborative lawyers, freed from the need to engage in litigation posturing, can devote their full attention to finding a solution that achieves the interests of the parties while respecting the wishes of the deceased.

The primary goal of both wills and trust is to maintain control over both who administers the estate and what happens to one's assets. Trusts are used to avoid the expense, delay, publicity of probate. Anyone who engages in estate planning is likely to want to avoid the loss of control, expense, delay and publicity inherent in litigation.

Business Law Almost all court cases settle. The Business Dispute Resolution Section is committed to the intentional pursuit of settlement of business disputes as the positive, beneficial outcome of legal representation through Collaborative Law. Parties and their lawyers build settlements that work, instead of accepting courthouse steps byproducts of a litigation process that won't go forward. In resolving business disputes, Collaborative Law works to:

• Reduce Costs: Turn off open-ended litigation expenses
• Empower the Clients: Clients keep control and participate fully in crafting the result
• Meet the Pressure of Time: The solution is needed NOW! In today's business schedule
• Keep it Private: Confidentiality is kept
• Maintain Relationships: Is a continuing relationship desired or required? Collaborative Law can preserve valued relationships
• Reduce Stress, Distraction and Lost Opportunity Costs: Collaborative Law works to reduce these "soft- but-very-real" costs of a business dispute

Collaborative law can address the human dimensions of an employment law dispute and produce creative, win-win solutions that cannot be obtained in court.

Employment Law disputes -- ranging from employment termination to discrimination to disabilities issues -- present opportunities for successful collaborative negotiation. These cases can take years to litigate, with enormous impact in the lives of employees and a substantial drain on the time and resources of the employer. Often the employer is represented initially by an in-house lawyer, while the employee may be initially unrepresented. If the employee hires a collaborative lawyer and if the parties enter into a collaborative law agreement, they can avoid the publicity associated with litigation (which can be harmful for both sides), not to mention the cost and delay. Both sides can then focus on their underlying interests, instead of focusing on litigation arguments, which tend to inflame the emotional aspects of the dispute and harden the positions of the parties.

Family Law is especially well suited to benefit from the collaborative process. No one knows the family and its needs and strengths better than the people involved. The collaborative divorce process encourages the parties to work together to resolve family disputes. The parties are able to fashion solutions that serve the best interests of themselves and, in many cases, the children involved. Often these solutions are more creative and better meet the needs of the parties than anything the Court is able to dictate given the limited time the parties spend before a Judge and the limited resources of the Court. The adversarial process inflames the emotional controversy and distracts the parties from their efforts to continue on with their lives. Our attorneys can help clients negotiate a collaborative divorce, by keeping the parties focused on resolving the issues in the most productive fashion for the family while still having an advocate to help navigate the difficult process of divorce or other family disputes. In the midst of the emotional distress of divorce, families are often asked to make financial decisions that will affect them for the rest of their lives.

Questions they may be asked to confront include:

- Should the marital residence be sold, and if so, when?
- What marital assets are most appropriate to hold onto given your new financial situation?
- Should marital support be in the form of Alimony or Child Support?
- What are the tax consequences of your divorce-related financial decisions?

Collaborative Law Financial Professionals are uniquely qualified to help you answer these questions. They serve as an independent consultant, assisting all parties through the many challenging financial issues that arise during and after the divorce. The goal is to achieve a monetary settlement that is both tax efficient and financially compatible with the needs of both parties.

A prime tenet of collaborative divorce is that both parents have a vital role in their child’s upbringing, and that each parent needs to be honored and positively affirmed. The familiar question “Who’s the more fit parent?” shifts to “What’s the best way to strengthen the child’s relationship with both parents?” Consequently, the parents should not fear “losing custody” or “never seeing my child,” but instead feel secure in a process that helps strengthen their ongoing relationship with their child. In fact, this process ensures that parents maintain authority over their family by crafting customized agreements rather than having an outside party or court impose a ruling.
The family and child specialist (FCC) typically meets jointly with both parents, with other member of the divorce team and even with the attorneys and parents in a 5-way meeting. The FCC’s role is limited to providing expertise in family and child related matters related to the divorce. The role does not include providing therapy or general coaching to the parents nor does it call for giving legal or financial advice.

The family and child specialist strives to use affirmative parenting language such as discarding the use of the word “custody” in favor of the phrase, “we both parent our child,” and replacing “visitation” with either “parenting plans,” or the phrase “my son lives with his father part of the week and lives with me part of the week.” It is important to convey that each parent is vitally important to the growth and well-being of the child, who will benefit by having meaningful, regular contact with each parent.

The family and child specialist has competencies in:

1. child development
2. developmental stages
3. needs across the age span
4. assessment of developmental status
5. the impact of divorce upon children
6. the harmful effect of parental conflict
7. effective parenting and co-parenting skills
8. effective communication
9. authoritative parenting
10. the use of effective discipline.

Working in an objective and neutral manner, the FCC specialist may assist through consultation, parent education, mediation, or assessment of the children. The FCC specialist may also gather date from collateral sources to assist the consultation.

Divorce coaching is an integral part of the kind of successful divorce that leaves the parties satisfied and protects the entire family. Coaching is a natural fit for the collaborative divorce approach, but can be just as useful in more traditional litigated divorces.

Different than therapy, coaching is more a consultation that has as its goals the reduction of the stress that accrues from divorce, helping the individual or couple (coaching can be done individually or together) to stay focused and less subject to the emotional roller-coastering that is typical in divorce, and building a post-divorce environment that is healthy and productive for the individuals and their children.

The divorce coach will help the client navigate a collaborative divorce by providing educative information, positioning the client to meet the challenges of divorce more effectively, and providing the tools to accomplish a healthy divorce. To accomplish these things, the coach will:

• help you understand what psychological stage of divorce you are at
• identify the emotionally laden issues that are likely to trip you up
• teach you strategies to avoid being derailed
• help you be a better communicator

help you plan for your life as a newly single person. Coaching is very present and future oriented and very focused on accomplishing the tasks needed to get you to where you want to be. Techniques can include education, scripting, role playing, guided imagery, and more.

Obviously an essential focus of collaborative divorce coaching is helping the client get through the legal process in a healthier manner. But different clients bring other issues they also wish to address, including parenting and co-parenting, changes in lifestyle, taking on new responsibilities, and future relationships. All are approached in the same forward focused, highly directed way. Your coach will help you refine your goals. With your permission the coach may also communicate with your lawyer to provide you with an integrated team approach that looks after your interests broadly and effectively.

Finding professionals to help you resolve your legal issues while reducing conflict, time and money can be difficult. Mutually satisfactory resolution requires legal and associated professionals with a dedication to, and training in, the collaborative process. The Massachusetts Collaborative Law Council’s members and associate members are committed to providing the highest level of legal representation without resort to adversarial court proceedings. For more information contact the Massachusetts Collaborative Law Council on line at http://www.massclc.org or

Massachusetts Collaborative Law Council
11 Summer Street
Chelmsford, MA 01824
Contact: Lynda J. Robbins
Phone: 978-256-8178
Email: mclc@massclc.org

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