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Reaching an agreement at the round table

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Indiana Lawyer Focus

Settling a dispute through the collaborative process may begin with the shape of the negotiating table.

The common image of a divorce positions the clients with their attorneys sitting on opposite sides of a rectangular table. Often, it is an adversarial situation where the lawyers do most of the talking.

Conversely, the collaborative law process might involve a change as simple as seating the parties at a round table. The attorneys might sit next to the clients they are not representing and talk to the clients directly. Other professionals from the mental health and financial services fields might also be part of the conversation.

reichert-melanie.jpg Reichert

Family law attorneys who practice collaborative law say the discussions at the round table yield substantially better results than those across the rectangular table.

“I think the clients come away feeling better about the whole experience if they have an active part in it,” said John Brandt, family law attorney at Beckman Lawson LLP in Fort Wayne. “They’re part of the team solution.”

Collaborative law dates back to 1990, and while it is widely practiced in other states and countries, it is slowly gaining acceptance in Indiana. Although it is akin to mediation, the collaborative method is distinctive in that the clients both have attorneys instead of a single lawyer acting as a neutral facilitator. Parties usually meet a couple of times rather than working out an agreement in a single session.

One obstacle to its growth in the Hoosier state is the relatively small pool of professionals trained in collaborative practice techniques. Another obstacle may be skepticism that arises from the absence of rules promulgated by either the courts or the Legislature regarding the method.

However, the obstacles will likely be overpowered by the advocates of collaborative law. Attorneys who employ the method in their practices talk about being convinced of the merits from the first time they encountered the technique.

Melanie Reichert, attorney at Broyles Kight Ricafort P.C. in Indianapolis, was first trained in collaborative law in 2005 and was among the small group of lawyers who formed the first board for the Central Indiana Association of Collaborative Practitioners in 2011. Currently, she is president of the association.

Based on her experience, Reichert said just about every kind of family law case could be handled through collaboration. Even situations that involve allegations of child abuse or substance abuse and cases that revolve around the hot-button issues, such as one spouse moving out-of-state and high-asset or low-asset divorces, can all be settled at the round table.

“It’s working because people are sitting down in a room and talking about the issues rather than hiding behind their lawyers,” Reichert said.

Hard work for a better ending

A 2010 survey by the International Academy of Collaborative Practice examined 933 cases that were handled with the collaborative model. The study found that 86 percent of the cases ended with a settlement agreement and another 2 percent of divorcing couples reconciled.

steinmetz-deetta.jpg Steinmetz

Although collaborative law has had success, it is not an easy process. The issues that need to be addressed can be very difficult to discuss, bringing up anger and despair. Yet, the clients are required to be respectful of each other, communicate in a mature manner and listen to the opinions and advice of everyone involved in the session.

All the hard work needed to reach a collaborative settlement, attorneys say, is worth it.

“One of the surprises for me was just how significant the difference is between the experience the clients have and the way the clients feel at the end of the collaborative process compared with the way the clients feel at the end of the traditional divorce process,” said Amy Stewart, attorney at Mallor Grodner LLP in Indianapolis.

Traditional divorce often makes the relationship and the communication between the husband and wife worse. The process can entail the parties showing their opposing spouses in the harshest light possible and maneuvering to get their fair share as well as part of the other’s share.

Once the battle is done, many couples have to figure out on their own how to work together to parent their children.

While watching that scenario play out over and over again in her more than 20 years as a family law attorney, Deetta Steinmetz thought there had to be a better way for couples to divorce. She found that better way in collaborative law and is now expanding her mediation practice at the Neighborhood Christian Legal Clinic to include it.

Within the collaborative setting, the clients identify their common interests and focus on finding ways to meet those interests.

Through the collaborative process, Steinmetz said, a couple has the opportunity to establish a new family dynamic.

Governing rules

Unlike mediation, which is governed by the rules of alternative dispute resolution, collaborative law has no formal rules or guidelines. The IACP does have practice and ethics standards for collaborative law attorneys.

Also, the National Conference of Commissioners on Uniform State Laws, also know as the Uniform Law Commission, crafted the Uniform Collaborative Law Rules/Act as model legislation for states to adopt. However, in 2011, the American Bar Association House of Delegates voted against approving it.

Collaborative law practitioners support the institution of rules over the technique whether established by the Indiana Supreme Court or the Indiana General Assembly. Rules would give more legitimacy to the practice and provide lawyers with clear guidelines, Reichert said.

A hallmark of collaborative law is the agreement worked out by the parties and their attorneys before the process begins. Often these contracts include many ADR principles, but the documents cannot cover every issue or situation that could arise during the process. Having set rules or guidelines, Reichert said, would help attorneys handle the unexpected.

Legitimacy could also foster acceptance. The divorce agreements that result from the collaborative process can be creative and put forth terms that are, for example, different than those outlined in the state’s parenting time guidelines.

Consequently, courts may take a closer look at the final divorce decree. Some judges, Reichert said, are concerned about agreements that do not follow the parenting time rules. However, she continued, caselaw not only encourages settlement of disputes, it also supports the decision of the parties to agree to terms not normally in an order.

In addition, the contracts signed at the beginning of the collaborative process have caused concern.

A key component of those contracts is the stipulation to focus on the negotiations and not go to court or threaten to go to court. If the couple does decide to proceed with litigation, the attorneys must withdraw and not provide any representation.

The Colorado Bar Association issued an opinion in 2007 that held the pre-session collaborative agreements violated the state’s rules of professional conduct. In part, the bar association was worried the terms of the contract would impair a lawyer’s ability to recommend all the legal alternatives.

A short time later, the ABA’s Standing Committee on Ethics and Professional Responsibility rejected that reasoning. The committee concluded the legal representation is not hindered if the clients are well informed and have consented to the attorneys’ limited duties.

“I think collaborative law will gain support in Indiana. I think it will become one of the first options people look to when they have a family law issue,” Reichert said. “Collaborative law is not right for every case and every person. It’s one more tool in the toolbox.”•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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