Maria -
I have absolutely no collaborative experience yet - that is the reason I
joined the listserv -to get a basic understanding of the philosphy. But I have
an idea, maybe.
Would it be possible to use another collaborative professional who knows the
process to agree to be the GAL for the client? They would have to act as GAL
and fulfill those duties, primarily and likely sign some sort of agreement to
that effect. But maybe, that way, the client gets what they may need in terms
of protection, but the process may be less compromised, as the person acting
for the client is also familiar with the process.
You are probably way ahead of me on this, but I would love to know if that
was something you considered, and why it would or would not work. I am
interested in anything I can learn about this process.
mariaalbafisch@xxxxxxx wrote:
Since I am more active on the listserv than my lawyer colleagues, I
offered to put this question on the listserv for others to comment on.
We have had a case where psychiatric illness overtook the Collaborative
Process, despite proper inquiry of mental health professionals treating
the party involved. Now that patient is not in hospital and in
outpatient treatment, both parties still want to pursue the CP, and we
have thought it valuable (even before the psychiatric crisis) to
consider one party having a gaurdian ad litem in order to preserve the
identified party's legal ability to sign contracts, etc.
We have several questions. Have others faced this problem? How have
you resolved it? Since a gaurdian ad litem assignment needs to be a
court proceeding, this should not be considered a violation of the CP
participation agreement or does it have to be? Our hope is that it can
be done without treating this as a violation, since it is not a court
action relevant to the divorce itself nor is it against the principles
of CP but rather in order to facilitate it.
We have wondered whether this is an over reach on our part. However,
the CP process has always seemed the best way to contend with people's
vulnerability and that seems to apply to this case all the more so.
While psychiatric vulnerability can truly compromise a party's ability
to collaborate, it can also demand that we find ways to adapt the
process so that it can accommodate this need. The spouse, in this
case, truly wants to find the best way to accomplish the separation.
The party initiating the separation is the same party who is now coming
out of a psychiatric crisis.
Your thoughts are much appreciated. Maria Alba-Fisch
-----Original Message-----
From: Rhonda Hercus <rhercus@xxxxxxxxxxxxxxx>
To: CollabLaw@xxxxxxxxxxxxxxx
Sent: Thu, 15 Jun 2006 08:22:36 -0500
Subject: RE: [CollabLaw] Re: collaborative Practice article
Beautifully put Bruce. That's a keeper - I've printed it off and
put it in my "Great Threads from the ListServe" file.
Thank you for this!
Rhonda Hercus
Collaborative Family Law
Monk Goodwin
Winnipeg, Manitoba
Canada
-----Original Message-----
From: brutoria@xxxxxxx [mailto:brutoria@xxxxxxx]
Sent: Wednesday, June 14, 2006 5:37 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] Re: collaborative Practice article
I appreciated the post by John Lande, and value the insights and
perspectives that he has to offer. It does me good from time to time
to remind myself
that we all have a unique perspective of the topic that we can add to
the
discussion. We each occupy a promontory around the sea of
collaborative practice
that provides us a spectacular but limited point of view about the
subject. It
is easy for those of us who have occupied our promontory the longest
to
automatically assume we have the best view.
Collaborative practice benefits greatly by having as many promontories
as
possible observing the program. We all speak truth, at least in part,
and,
barring evidence to the contrary, we are each sympathetic to the cause.
I offer these observations as a backdrop for my own process of
considering
the limitations of my particular point of view. To wit: the nature of
my
practice has evolved to where I no longer take cases in the
adversarial arena,
with very few exceptions. Statistics continue to tell us that
something in
excess of 95% of all cases end up settling rather than being decided
by a judge.
Based on this I continue to take cases that are not collaborative, but
with
the express limitation in my retainer agreement that if negotiations
break
down I will withdraw and refer my client to a trial specialist.
Those cases shake out both ways. Often times, we are able to settle
the
case. Other times, the march of justice places the case on a court
calendar, and
I help my client find a trial attorney.
These realities shape my perception of the discussion about
cooperative law.
You might say, aha, see, you are already practicing cooperatively, so
what
is the big rub!?! While it would appear that way on the surface, the
fact is I
do NOT take cases into the court system. It is, in part, for this
reason that
the cooperative practice does not fit for me. Interestingly, this fact
does
not always keep clients from choosing to work with me even with the
limitation expressed.
I am aware that a good many attorneys who practice in my jurisdiction
make
similar commitments, though most limit all cases to collaborative
cases only.
I suspect that a good many attorneys in other jurisdictions have also
decided
to limit their practice to avoid trial cases. Therefore, this is
another
consideration in considering whether collaborative and cooperative
cases should
be offered side by side.
I can understand that for some clients, being able to maintain a
relationship with their primary attorney whether the case settles or
goes to trial can
be important. For my situation, I can honestly tell my clients that
their best
interests are served by having a trained and skilled negotiator
working with
them toward settlement, and, should that fail, to have a skilled trial
attorney by their side at court. That logic often makes sense to most
of my
clients. If the case looks to be conflicted and contentious, I
recommend the client
hire a trial attorney at the beginning, especially when their spouse
has
already opted for this set of skills in their attorney.
Were I to consider myself a skilled trial advocate, and a skilled
collaborative attorney, I may well have a different take on the matter.
Recognizing that collaborative attorneys who are skilled trial
advocates
universally come into collaborative law with those skills already
honed is
another factor that leads me to disfavor an approach that would seek
to do both
for the client.
John Lande makes the observation that "some practitioners place their
values
ahead of parties' needs." I would submit that, in this context, all
attorneys place their own values ahead of the clients needs, because
our own values
are the only basis from which we can operate, i. e., when an attorney
tells
their client, I do full service here, and I can represent you in the
collaborative model, or, if that fails, I'll be your attorney in
court, I think it is
still fair to argue that the attorney is placing their own values
above the
client's needs. They obviously are comfortable operating in the court
arena, or
they would not be willing to take the case to begin with.
It does not follow, from my perspective, that the client necessarily
knows
what is in their best interests, simply because they don't want to
lose the
relationship with their attorney. Many clients, when they first walk
through my
door, are in the space of wanting a pound of flesh from their spouse.
It is
precisely for this reason that clients, in effect, make a pact with
the devil
when they succumb to gratifying base instincts, which can usually
irrevocably set the tone for how their whole divorce gets played out.
When their advocate has a wealth of experience as a trial litigator,
and is
now looking to move into the collaborative practice, my fear is that
their
relative comfortability as a trial advocate may be counterbalanced by
relative
inexperience as a collaborative attorney. This imbalance in skills may
well
lead to the failed collaborative case, which can move seamlessly into
court.
In any event, we are all talking about hypothetical cases. In reality,
the
choice for the client should be simple: choose chocolate or vanilla.
Opt for
committing to a process that only contemplates reaching a result that
works
for each party- or don't. There is nothing magical about cooperative
law - it
already exists, and has since the dawn of divorce. Most cases resolve
themselves by agreement of the parties. We all recognize that the risk
in traditional
cases is the attorney that the spouse hires. If the only set of tools
they
own is litigation, that is the only result a client can reasonably
expect. If
the attorneys are deal-makers, they will probably help the clients
reach some
kind of accord.
From my perspective, it still does not make sense to think that
collaborative practice can in any way be enhanced by including it in a
package that
contains the choice for cooperative practice.
Finally, I am still not clear, John, with your thoughts in the
paragraph
beginning, "I differ with Bruce Peck...", where you go on to discuss
the
disqualification provision in non-family law cases. I my original
post, I did state
that my only grounding is in family law, and I am neither familiar
with the
extension of collaborative practice to non-family areas, nor clear
about the
validity of those criticisms.
When I commented about some of your views reflecting the distance of
the
academician from the playing field, let me clarify that is not
intended to
discount the validity of your observations, only the promontory from
which they
are perceived. I value both the work you do and your voice on this
listserv.
Take Care
Bruce D. Peck
Collaborative Family Law
9202 Tyne Lane
Inver Grove Heights, MN 55077
(651) 994-9944
(651) 994-9955 Fax
NOTICE: PRIVILEGED AND CONFIDENTIAL: This electronic mail message and
any
attached files contain information that is intended for the exclusive
use of
the individual or entity to whom it is addressed, and may contain
information
that is proprietary, privileged, confidential and/or exempt from
disclosure.
If you are not the intended recipient, you are hereby notified that
any
viewing, copying disclosure or distribution of this information is
prohibited and
may be subject to legal restriction or sanction. Please notify the
sender by
reply electronic mail or by telephone at (651) 994-9944, of any
unintended
recipients and delete the original message and attachments without
making any
copies. Thank you.
Despite the fact that the ABA Journal article distorted my views, I
agree with Bruce Peck and others that the article generally did a good
job.
I had asked the writer to let me see the language she planned to use
about my input and she sent me an email with that language. It included
some errors and I sent an email with alternative language. Despite the
fact that I emphasized my belief that clients should be offered a
choice
between Collaborative and Cooperative practice, she (or an editor)
changed my language to imply that I advocate "scrapping" the
disqualification agreement. I wrote the following letter to the editor
of the ABA Journal:
"Collaborative Counselors: Newest ADR Option Wins Converts, While
Suffering Some Growing Pains," generally does a good job of
highlighting
key issues about collaborative practice. It implies, however, that I
advocate "scrapping" the disqualification agreement. In fact, I
advocate that collaborative practitioners offer clients the option of
cooperative practice (i.e., structured negotiation without a
disqualification agreement) in addition to collaborative law - as the
Mid-Missouri Collaborative and Cooperative Law Association does - not
merely instead of it.
FYI, the MMCCLA recently finished developing its forms and website
( http://www.mmccla. ;<http://www.mmccla.org/> org/) and is planning a
public education campaign in
our community for the fall. In time, we will see how this experiment
works.
I differ with Bruce Peck (and presumably most subscribers to this
listserv) about a point he focused on in his email below. It's quite
remarkable that the Collaborative practice field is determined to
maintain your commitment to the disqualification agreement for
non-family civil cases when there have been only a handful of cases
despite great efforts to stimulate this area of Collaborative practice
by a number of groups. I believe that many parties in civil cases would
benefit by Cooperative negotiation services, thus it seems that
Collaborative practitioners are placing their values ahead of parties'
needs in these cases. Even in family cases, where Collaborative
practice clearly does satisfy many parties' needs, some parties who
would like a "small c" collaborative process may not be willing to use
Collaborative practice and others may use it but might prefer
Cooperative practice instead. So I do think that it is accurate to say
that some practitioners place their values ahead of parties' needs. I
realize that we have been over this ground on this listserv and I say
this to explain my comments rather than to repeat the previous
discussion.
I agree with Bruce Peck that there is great pressure on parties in
traditional litigation, as I discussed in my Ohio State article. I
trust that Collaborative practitioners have a higher standard in
practice than "it's not as bad as litigation." Collaborative theory
highlights the importance of good, informed client decision-making and
I'm sure that most Collaborative practitioners work hard to achieve
that. My point is to highlight a risk of undermining that value, which
I hope practitioners would not categorically deny and would, instead,
take take seriously.
John
John Lande
Associate Professor and Director,
LL.M. Program in Dispute Resolution
University of Missouri-Columbia School of Law
Columbia, MO 65211
Tel: 573-882-3914
Fax: 573-882-3343
[Non-text portions of this message have been removed]
[Non-text portions of this message have been removed]
__________________________________________________________
Check out AOL.com today. Breaking news, video search, pictures, email
and IM. All on demand. Always Free.
__________________________________________________
Do You Yahoo!?
Tired of spam? Yahoo! Mail has the best spam protection around
http://mail.yahoo.com ;
[Non-text portions of this message have been removed]
