HCBA Lawyer Magazine Vol. 30, No. 4 | Page 24

Collaborative ProCess risk analysis: the imPortanCe of sCreening your Case Collaborative Law Section Chairs: Shannon Ciesluk – CBIZ, LMHM and Jessica Felix – Felix, Felix & Baseman, LLC one of the first steps the practitioner must take in a new matter is determining whether the case is suitable for the O ne of the first steps the collaborative family law practi tioner must take in a new matter is determining whether the case is suitable for the collaborative process. I am a proponent of the collaborative process in divorce, and it is a significant part of my practice. However, the collaborative process is not superior in every respect for every case, and not every matter is appropriate for the collaborative process. This article discusses the importance of screening your case before committing to the collaborative process. During the initial consultation, the lawyer must identify the issues that need to be resolved and discuss the options available to reach the client’s goals. The lawyer must reasonably consult with the client on the means to reaching the client’s objectives. This discussion should include the benefits and risks of each option. The benefits of collaborative practice often include a timely, mutually satisfying and cost-effective result. While there are clear benefits, there are also significant risks, and lawyers must inform their clients about perils of the process, including the disqualification of lawyers if an impasse occurs. The initial collaborative process. screening process is critical to ensuring a successful outcome. A wide range of factors should be considered when analyzing the appropriateness of the collaborative process for a case. Clients are responsible for the progress of negotiations, and that requires that the parties listen to each other, present reasonable options and share necessary information. Where a spouse does not accept that the marriage is broken, or is not motivated to cooperatively solve problems, he or she may sabotage the process. Other warning signs may include a lack of trustworthiness by one or both of the parties. If your client reports that his or her spouse is not willing to be transparent and honest or negotiate in good faith, the likelihood of success through the collaborative process is diminished. Other considerations include a power imbalance in the relationship or a history of domestic violence. While it is possible to overcome some issues by creating a safe environment with a strong professional team, there will need to be a strong facilitator, open communication within the team, and a level of self-confidence by the intimidated party. Likewise, when there is an active substance use disorder or where a spouse suffers from an untreated mental health issue, use of the collaborative process should be carefully scrutinized. Collaborative law demands skills from the lawyers in managing conflict, and the relationship between the lawyers or other professionals on the team may also affect the outcome. Trust in the team — especially between the lawyers — is essential. If you have some suitability questions, but the prospective collaborative team consists of professionals with whom you have successfully worked, this process has a higher level of success. When in doubt, request your team facilitator meet with the parties individually before a collaborative participation agreement is signed to conduct a thorough screening and make a recommendation to the lawyers about proceeding collaboratively. n Author: Christine Derr – Harris, Hunt & Derr Get Involved! sIGn up on Your MeMber profIle at hIllsbar.coM. 22 MAR - APR 2020 | HCBA LAWYER