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What is Collaborative Divorce?

New York Family Law Attorney Chaim Steinberger Explains

Video Transcript:

Chaim Steinberger:

There has to be a certain amount of trust. It's great when each one knows that the other party is somebody of good will, and we're not out to gratuitously hurt each other; we have disagreements; we're upset with one another, but if we sit down and speak about it we can figure out a way through this.

Rob Rosenthal:

So what is a collaborative divorce and could it be right for you? Well, that's what we're going to find out right now, because that's what we're going to ask the lawyer.

Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com and my guest is New York City attorney Chaim Steinberger. I want to remind you that if you have questions about your specific situation, head over to askthelawyers.com, click the button at the top of the home page where it says “Ask a Lawyer” and you can ask away right there. It’s good to see you as always. Thank you so much for making some time to answer our questions.

Chaim Steinberger:

It’s always my pleasure to be with you, Rob.

Rob Rosenthal:

So specifically in New York, what is a collaborative divorce? I'm not familiar with that term. What does that mean?

Chaim Steinberger:

Well, collaborative law with a capital C and capital D is a very special process, and it's a lot different than litigation as it’s traditionally practiced. The most striking feature of it, but this isn't where the magic happens, but this is the most striking feature, the most striking feature of collaborative law is that both lawyers and both clients sign an agreement that if either party leaves the negotiating table and goes into an adversarial process like litigation, both lawyers will have to withdraw. So that reduces the incentive for any lawyer to torpedo negotiations; it puts an extra impetus on both the lawyers and the parties to go that extra mile to try to achieve a settlement, because they know that the moment the settlement doesn't go, the lawyers are out, the parties have to start all over with new lawyers and bring them back up to speed. Everybody involved in the collaborative practice is a trained mediator. The idea behind collaborative law is that 99.9% of all cases settle without ever going to a judge or a decision maker to make the ultimate decision.

So we set up a process that really is specifically designed to protect the rights and to take people to that 0.001% of the case. How about we set up a process that's right for the 99.9% of the cases. Let's figure out how to make it happen so everybody involved in the process, whether it's the lawyers, whether the accountants, whether the child specialist, whether it's psychologists that help figure out what we should do about their children, they're all the trained mediators, and so they help the parties come to a resolution. Now, like mediation, it's up to the parties to decide what works for them and what doesn't, and the lawyers are there to protect them. I call collaborative law mediation with protection. So if you go into mediation and you don't have a lawyer on your side, then you might be making a mistake and the mediator’s job is not to protect you. If the mediator says, “Well, wait a second. You're about to make a mistake.” The mediator may have torpedoed the resolution, and the mediator’s job, of course, is to facilitate a resolution. So collaborative law as mediation has all the benefits of mediation. We don't further traumatize a relationship, you don't walk out of the process hating each other even more than you did before the process started. Of course, people getting divorced don't have a whole lot of love toward each other, so it's the mediation process but with the protection that each party has a lawyer at their side to say, “Wait. Wait a second. Let's talk about this. Let's figure out how to make it happen.”

Rob Rosenthal:

So does that mean if you go through a collaborative divorce and everything works out, do you never have to go before a judge? What's the process?

Chaim Steinberger:

So if the collaborative law process is successful, like with any mediation, the lawyers draft an agreement, the party signs an agreement, and the lawyers put it through the legal system as an uncontested divorce with all of the terms that you and your spouse already agreed on. So you don't have to appear before a judge; you don't have to get up and talk; you don't spend the money doing that, and so if it's successful you never show up before a judge. If it's not successful, then you have to start the process anew in a litigation posture.

Rob Rosenthal:

I would assume that makes this a more inexpensive way to go.

Chaim Steinberger:

In the beginning when collaborators came out, we sold it as a cheaper, quicker process. Dr. Julie McFarland, a professor from Canada did a three-year longitudinal study and said that's not necessarily fair, because there are litigated cases that settle very quickly, and there are collaborative law cases where parties go on and on trying to figure out how to do it. So it's sort of comparing apples to oranges. I can’t promise that a collaborative law or a mediated case will go any quicker or that it will be less expensive, I can’t promise that, but what I can promise is that a collaborative law case will not further traumatize the relationship.

So when you have a dispute with somebody, the way that you negotiate determines how you feel. In other words, if we have a bowl of jelly beans and we decide who gets how many jelly beans; if we use any power based, determinative factor, like who is stronger, screams louder, spends more money on a lawyer, then at the end of the day, even if I get all the jelly beans, I'm not going to like you as much, but if we use one of the processes where we say, “Let's figure out what's fair. Let's figure out what's best for the children.” And if we talk about what's fair, about what’s best for the children, at the end of the day even if I don't get any jelly beans, I'll feel more generously disposed toward you because we didn't further deteriorate our relationship. So particularly when you have children in common and you have to keep parenting those children, not only to age 18 or 21, not only until child support stops, but the children might be 35 years old, and if the parents don't agree on who does Thanksgiving Eve and who does Thanksgiving Day, the children are always in a quandary. If you want to give the children the gift of being able to love both parents, if you want to be able to walk your child down the aisle with your co-parent, your ex, then you have to find a way to continue to negotiate without further deteriorating the relationship, and it comes by treating people with dignity and fairness and honesty, but also by protecting yourself. So most people don't do these things because we feel very scared and when we feel scared we clam up and become more rigid. So the collaborative process is designed to let people open up, explore more options, and find out what's going on. If you'd like, I can give you some examples, Rob.

Rob Rosenthal:

Well, first of all, you've made me want jelly beans now. Is this the kind of thing that you would say any family law attorney could step in and do this collaborative process, or is this something that you need somebody that has some training and has some experience in this area?

Chaim Steinberger:

Collaborative law is only practiced by a small number of practitioners. The person has to be a lawyer and then has to be trained as a mediator, and then on top of that a separate training as a collaborative lawyer, but more importantly than all of that has to have what in the collaborative law field is called The Paradigm Ship; so when you walk into negotiation, you're not walking in as an adversary saying, “How do I get something over on the other side?” But rather saying, “How do we work this out? How do we make this work for both parties?”

So for example, if the wife wants the house. Perhaps we say, “Why do you need the house?” And she goes, “Well, little Johnny's got ADHD, and the school has a great special program for special needs children.” So then it's not the house, it's a school district. It might not be the house, it might be friends, it might be her elderly mother, and by looking at not only what the actual demand is but the broader interest, you can generate different possibilities. It doesn't always work, but you'd be surprised at what percentage of cases it works with, that the moment you get behind the stated position, that you get to the person's interest where you can find a way to satisfy both one party's interest on the other party's interest, and that's how you get to a win-win resolution where neither party loses and they both win. It's like having two cakes instead of one where each one can get the full cake.

Rob Rosenthal:

Right. So it doesn't mean everybody goes into this as best friends where there’s going to be no disagreement; there can still be some contentiousness, but it's just having people to help you work through that.

Chaim Steinberger:

So when people come into the collaborative law process and there's a lot of contentiousness, the parties have to be at least in that frame of mind that they're willing to explore it. It does require a commitment of time and energy and money, and they have to be willing to allow themselves to be guided. So if somebody's consumed by rage or anger, then probably they're not a good candidate for collaborative law. On the other hand, I would warn my clients who can't trust the other side to go into collaborative law; so if you think that your partner, your spouse, just wants to drain the money out of you, and then when you're close to the finish line they walk away from the table and now you've expended all of your time, your energy, your resources, now to start over might be close to impossible. So there has to be a certain amount of trust. It's great when each one knows that the other party is somebody of good will and we're not out to gratuitously hurt each other; we have disagreements, we’re upset with one another, but if we sit down and speak about it we can figure out a way through this and that would be a perfect couple of candidates for the collaboration process.

Rob Rosenthal:

And you've had a lot of experience with that process.

Chaim Steinberger:

I've had experience with that process. I do that, I do mediation, and I, of course, do litigation.

Rob Rosenthal:

Chaim, lots of great information as always. Thank you for helping us out and answering our questions. I appreciate it.

Chaim Steinberger:

It was a pleasure being with you, Rob.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been New York City attorney Chaim Steinberger. I want to remind you, if you want to ask questions about your specific situation just go to askthelawyers.com, click on the button at the top of the page that says “Ask a Lawyer”, and you can do your asking right there. Thanks for watching, everybody. I'm Rob Rosenthal with AskTheLawyers™.

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