This article is the second part of an article exploring the collaborative divorce process in Arizona using the full team approach.  Arizona Collaborative Divorce Process – Part 1

3. Child Specialist. The parties jointly retain a mental health professional to act as a child specialist. The child specialist acts as a neutral representative of the children’s needs. This professional has training to work with children and family going through divorces. If the children are old enough, the specialist meets with the children to understand their needs and desires. The specialist conveys what is best for the children to the parents and helps the parents define a parenting plan that is in the children’s best interests. Unlike the litigated case, what is best of the children is a central focus. The parents gain the ability to understand how their decisions impact the children and make choices accordingly. The children, in turn, feel heard and understood and feel safe and supported. The children have an opportunity to ask questions and have a voice.

The parents also benefit. Instead of allowing their children to become victims of an acrimonious divorce, the parents get to work with a professional to make life-changing decisions. As every child is different, this professional allows the parties to consider unique needs and concerns. The child specialist also helps the parents discuss future conflicts and how to best address them.

4. Case Manager. One of the professionals also acts as a case manager, who schedules meetings, prepares agendas and minutes and otherwise keeps the process moving forward. Generally the case manager is one of the coaches.

The team works together toward a common purpose, which is the best outcome for everyone. The team works to develop common interests and goals. By having a team, both parties are on equal ground and have the support to make decisions in everyone’s best interests. Also, the team is equipped to gather the information necessary for the parties to make their best decisions.

In a litigated divorce, an attorney generally handles all roles to some extent – providing emotional support to clients, and reviewing financial records, for example. With the full team approach, arguably each role is handled by the most skilled professional.

While some professionals will not practice collaborative law outside of a team approach, others are comfortable with either just using collaborative attorneys or only certain other professionals. Sometimes that is an economic decision.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

A. Generally. Collaborative divorce is a method of resolving a family law issue through cooperative means with an agreement to not litigate the case and to disclose information voluntarily. If the parties later choose to litigate, they cannot not use the same professionals they used in the collaborative process. While the term “collaborative divorce” is used, the process can be used for a number of family issues, including post-decree matters, paternity matters and guardianships.

B. What Is An Interdisciplinary Team?

Collaborative Divorce can be completed with just collaboratively trained attorneys (whose role is described in the following article) or with select professionals. In an interdisciplinary team approach, the team generally includes the following team members (in addition to the attorneys), who are all trained in collaborative divorce:

1. Collaborative Divorce Coach. Each party has his/her own divorce coach. The coach is a licensed mental health professional, but he/she does not provide therapy or otherwise treat his/her client. The coach helps the participants manage conflict, the emotions surrounding the process and communication. The coach also helps his/her client determine his/her goals and emotional barriers to settlement, understand the both parties’ concerns, develop strategies for optimal communication, lower anxiety, increase receptiveness to settlement, identify priorities, expand options and work through roadblocks to settlement. The coach also helps in developing co-parenting skills and creating a parenting plan. Whereas the task of emotionally supporting clients tends to fall on attorneys in a litigated case, in the collaborative process, the clients have someone better equipped to handle that.

2. Financial Specialist. The parties share this neutral professional. The financial specialist helps the parties collect and understand their financial options in a divorce. This professional identifies the parties’ goals and concerns and then organizes the financial data and creates and analyzes options for property division and debt division. The professional also helps with the analysis of income and factors related to spousal maintenance. The professional also helps the parties identify and evaluate tax consequences and develop budgets and long range financial goals. The financial specialist must be a certified financial planner, certified divorce financial analyst, certified divorce planner, and/or certified public accountant. Because this professional will discuss a lot of the more perplexing and difficult issues with the parties (money), and because people often have unrealistic financial expectations, facilitation skills are useful.

Part 2 of this article

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

This article is the second part of an article exploring the Arizona attorney’s role in the collaborative process and various ethical problems that arise.  The first part of this article Collaborative Divorce Process AZ.

3.    Ethical Question:  Doesn’t an attorney have to zealously represent his/her client?
The Arizona Supreme Court removed the obligation to zealously represent client in 2003.  Attorneys now just have a duty to act honorably.  Pursuant to Ethical Rule 1.3:   “A lawyer shall act with reasonable diligence and promptness in representing a client.”  The Comment to this rule defines this principal:
Comment:  [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.  A lawyer must also act with commitment and dedication to the interests of the client.  A lawyer is not bound, however, to press for every advantage that might be realized for a client.  For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.  See ER 1.2.  The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (Emphasis added).

4.    Ethical Question: Does The Withdrawal Provision Coerce Clients Into Settling?

The withdrawal provision is seen as a way to keep all parties focused on settlement. It also allows the attorneys to keep their “settlement hat” on, rather than moving back and forth between preparing for litigation and trying to settle.

Some argue that the withdrawal provision is coercive; some people can’t afford to leave the process. One may point out that this situation is no different than a client who has exhausted his/her retainer. Sometimes litigants have to choose between paying another big retainer for trial or settling.

5.    Ethical Question:  Does Relying on Voluntary Disclosure Require Too Much Risk?

It is true that a party can be dishonest through voluntary disclosure, but there is arguably just has much risk of dishonesty in litigation.  A litigant can lie under oath or fail to produce relevant information. One may argue that deception is easier to detect in a collaborative case where there are: more face to face interactions where questions can be asked, financial experts who can determine if information is missing, and the use of coaches. The participation agreement also provides remedies – ending the process – if someone does not act in good faith.  Parties can still insist on sworn documents in collaborative cases.
Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

In the collaborative process, a separate collaborative lawyer is retained by each party. This lawyer must be licensed to practice law. The attorney has a unique challenge in the collaborative process. Attorneys generally have the litigation process and posturing engrained in their way of being. In the collaborative process, attorneys have to learn to advocate collaboratively. They have to represent their clients in a way that is consistent with the collaborative process and goals.
A collaborative attorney’s goal is to help his/her client negotiate a mutually acceptable agreement outside of court. The attorneys still provide legal guidance and education to their clients and help the clients identify the parties’ respective needs.  The attorneys help their clients manage conflict, propose reasonable solutions and explore settlement options. The attorneys also prepare the necessary paperwork.  They cooperate with each other and other team members.  Transparency is key.  It is incumbent on the lawyers to explain their limited scope involvement, the client’s choice in entering the participation agreement and avoiding court and the client’s duty to voluntarily disclose information.

Some wonder if the collaborative attorney can ethically take on a case where there is more disclosure and a limited scope of representation.  The following ethical rules and considerations support the collaborative process:

1.    Ethical Question:  Can An Attorney Limit The Scope Of Representation To That Required In Collaborative Law?
Ethical Rule 1.2(c) states:  “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  Informed consent is defined as:  “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See ER 1.0(e).
It is important that the attorney appropriately communicate the limits of representations and the benefits and detriments of the collaborative process.  Ethical Rule 1.4 states:

“(a)   A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b)   A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

2.    Ethical Question:  Can An Attorney Be Transparent (Share Information With Other Professionals) As Required By The Collaborative Process?

Ethical Rule 1.6(a) states:    “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized . . . .”  Therefore, disclosures are appropriate where the attorney obtains consent from the client.  Clients consent to this method of communication at the beginning of the process.

Part 2 of Collaborative Divorce Process Arizona

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

A. What is Collaborative Divorce Law?

Collaborative law is a method of resolving disputes without litigation. The parties agree to stop, delay or avoid litigation and hire professionals trained in collaborative law to negotiate settlement. The parties may just hire their own collaboratively trained divorce attorneys or other professionals as well. Financial experts and child specialists (where children are at issue) are jointly retained. The parties agree not to go to Court, agree to voluntarily disclosure of relevant information. The parties agree not to use any of the experts if they decide to proceed to litigation.

B. Who Should Use Collaborative?

People should consider collaborative when the following are true:

• When they want control over the outcome of their case.

• When both parties are willing to participate.

• When they want or need a continuing relationship with the other party.

• When they want to save money.

• When they want to resolve the matter quicker.

• When they are trying to avoid the stress of litigation.

• When they want privacy.

• When litigation will not provide them with what they need.

C. When Should Collaborative Not Be Used Or Be Stopped?

While the process is equipped to deal with some tough issues like mental health issues and domestic violence, extreme personality disorders will not lend themselves to the process.

Some people choose collaborative because they believe they will be able to better control the other party or the flow of information. If the professionals notice an abuse of process, that is reason to stop the collaboration.

If the process breaks down, it is incumbent on the professionals to ensure a smooth transition.

D. Collaborative Versus Other Methods.

Litigation – Litigation is the use of the Court system to resolve disputes. The parties engage in an adversarial process, usually involving the retention of litigation of separate experts. At the end, a judge (or jury in some civil matters) makes the decision. Litigation is risky, expensive, stressful and time consuming.

Arbitration – Arbitration is also often quicker and less expensive than litigation. However, it does not tend to save relationships, offer creative solutions, allow the parties to control the outcome or offer the support of the collaborative process.

Mediation – Mediation offers many of the same benefits of collaborative law. Mediation tends to be less expensive. Collaborative tends to offer more support through the use of multiple professionals. Parties can use professionals in mediation.

Alona M. Gottfried is a family law mediator,  AZ collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

What is Collaborative Law?

A. Definition

The International Academy of Collaborative Professionals (IACP) defines Collaborative Practice as: “A dispute resolution practice in which: settlement-by-agreement is intentionally pursued as the positive outcome of legal representation; cooperative practices replace adversarial techniques and litigation; and the parties actively participate in all negotiations necessary for resolution.”

B. History of Collaborative Divorce

The Collaborative practice was created in the 1990s by a family law attorney from Minnesota named Stuart Webb. He saw how damaging litigation is to many families. Since then, the practice has spread to approximately 46 states as well as Europe, Canada and Australia. The IACP states that over 22,000 attorneys have been trained in Collaborative Divorce. In some areas, it is the predominant method for resolving family disputes. One difference in the use of collaborative in various regions is the support from the judiciary. In England, for example, a member of the Supreme Court endorsed the process. Almost a third of all English family law attorneys have been collaboratively trained.

The IACP is the primary global collaborative organization. It was founded in the late 1990s in California. One can learn more about collaborative law at: www.collaborativepractice.com. The American Bar Association (“ABA”) has a Collaborative Law committee.

C. Defining Principals

In collaborative law, the parties agree to stop or delay litigation. Each client retains his/her own collaboratively trained attorney. They may also retain other professionals (jointly or separately), as may be appropriate. The other professionals can include mental health professionals and financial professionals. None of the professionals can participate in any future litigation. The parties engage in informal discovery that is prompt and voluntary. Transparency is key. At the end of the process, in which the parties engage in good faith, the parties should have a written agreement on all issues.

D. Logistics

The parties first sign a participation agreement, which explains the process, including the fact that professionals will withdraw if the case proceeds to litigation. It also dictates that a professional may terminate the process if it believes a party is not participating in good faith.

The parties attend a series of meetings, which may include the full team or certain members of the team. The team has an agenda, and the meetings are generally held in a neutral environment (like a jointly retained professional’s office). The early meetings set the ground rules and expectations. Where mental health professionals are involved, the parties usually meet with them prior to a joint meeting to ensure appropriate behavior in the meetings. The process is client driven. The team is ready to handle emotions. At the end of meetings, minutes are generally drafted and homework assigned.

E. The Future of Collaborative Divorce Law

There is a push to adopt the Uniform Collaborative Law Act, which would standardize procedures for the collaborative process. The ABA has not adopted it, but at least five states (not Arizona) have considered enacting it.

Collaborative Law faces challenges. Education is key, as most of the public does not know it is an option. The use of collaborative law requires a change of paradigm. People need to know that adversarial actions are not mandatory. Cooperation and a process that focuses on the future and saving relationships is not only possible, but available through Collaborative Law.

Alona M. Gottfried is a family law mediator,  Arizona collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Collaborative divorce in Arizona is a more peaceful method of resolving your divorce (and other family law matters).  In collaborative divorce, the parties agreed to forgo litigation and the acrimony that comes with it.  Both parties still have attorneys, but they are attorneys who are trained in the collaborative practice who work with other team members to help the parties resolve their disputes.  The team members include:

•    A coach for each party.  A coach supports the party and helps with communication and co-parenting skills.  A coach also assists the party in determining their priorities for resolution.
•    A joint financial specialist, who helps generate solutions regarding financial issues.
•    A child specialist (if the parties have children), who helps determine the best interests of the children.
The parties enter a formal agreement to not litigate the case.  If a party changes his/her mind and wants to proceed with traditional litigation, he/she can.  However, he/she cannot use anyone from the team in litigation, including his/her attorney.   Issues are resolved through group meetings.  At the end, one of the attorneys drafts the Decree of Dissolution of Marriage for the other’s review, and the Decree gets submitted to the Court without either party having to actually go to court.
There are many benefits to collaborative divorce.  For example:

•    You will be able to participate extensively in your own divorce.  You have a strong voice and the final word in the outcome of your divorce.  In traditional litigation, while you may testify, a lawyer generally talks for you, and a judge decides what is going to happen to your children and your assets.
•    It is generally less expensive than traditional litigation.  There is no litigation preparation, trials or angry letters and phone calls between attorneys.
•    It generally takes less time than litigation, because you hold meetings on your timetable.
•    It is generally less stressful –no one is attacking you, and you do not have to testify.
•    You learn to work with your soon to be former spouse, which is in the children’s best interests.  You are going to be co-parents for the rest of your lives, and it is best to form a cooperative relationship at the beginning.
•    Your children’s best interests are considered, through the aid of the child specialist.  In traditional litigation, unless the child is interviewed or a custody evaluation is undertaken, the Court will not have unbiased information about your children’s needs.
If you and your spouse want to cooperate to have a fair and peaceful resolution to your marriage, and if you want a team of professionals to guide and support you, then collaborative divorce may be for you.
Alona M. Gottfried is a collaborative attorney and mediator in Arizona.  If you have questions about collaborative divorce, she can be reached at: 480-998-1500 or alona(at)sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

There are options other than slugging it out in court if you are getting a divorce in Arizona.   Some other options include Mediation and Collaborative Divorce.  This article will only focus on the Collaborative option for getting divorced.  With Collaborative Divorce, the main focus is to settle all issue of a divorce (such as custody, child support, spousal maintenance and the division of property and debts) collaboratively and without going to court. The concept is to work together as a team to reach an agreement.  Litigation is not only expensive, but it can be very stressful.  Collaborative Divorce  is an option that you may wish to consider.  Collaborative Practice is a reasonable approach to divorce based on three principles:

•    A pledge not to go to court.

•    An honest exchange of information by both spouses

•    A solution that takes into account the highest priorities of both spouses and their children

The Collaborative Divorce model, a form of alternative dispute resolution, emerged in response to the psychological, financial and family system devastation, which often results from traditional family law litigation. The Collaborative Divorce model relies upon an interdisciplinary team of professionals whose integrated services educate, guide and support the divorcing couple in crafting an equitable and just resolution without threat of or resort to litigation. At the beginning of a case, both parties and all professionals on the team sign a Participation Agreement, stating that all team members will withdraw from the matter in the event that either party terminates the Collaborative process by opting for litigation.  Collaborative Divorce can only work if both sides are willing to participate in the process.  You and your spouse can gain more information through various sources on the internet and Collaborative Divorce Practitioners.

Alona M. Gottfried is a member of the Collaborative Divorce Professionals of Arizona.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260