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