Tom - You presented an interesting problem to the CollabLaw listserv. First
of all, in my opinion, any Collaborative Divorce Professionals, Inc, member
(our Columbus collab group) who pulls a stunt twice like you describe
deserves to be sanctioned by the CDP Board, or at least warned that such
conduct is not acceptable in the future. My understanding and philosophy
always has been that there is not supposed to be any unanticipated
significant surprise arise at any 4-way meetings. Maybe we can deal with
this problem in writing our new Protocols this year.
Possible solution: Send both parties to Early Neutral Evaluation. Attached
is an article I wrote for Columbus Bar Briefs in 2005 which contains a brief
description of how I practice ENE. I also plan to write another article
about ENE for the next issue of THE COLLABORATOR, and how it is a friendly
companion to Collaborative Divorce.
Over the last 10 years, my experience has been that 100% of all couples I
have seen as a neutral have voluntarily chosen ENE over facilitative
mediation, and my success rate of settlement has been extremely high. ENE
always has been a first step (before litigation or CFL) because it is
primarily an educational process which cannot cause either party any harm or
loss. The end result is a decision either to move on to the collaborative
process to complete the necessary dissolution of marriage documents and
filing, or to proceed to litigation, which has happened very rarely. When my
work as a Neutral Evaluator ends, my standard practice is to refer both
parties to the CDP website to choose collaborative lawyers (if neither is
already represented), or to refer them back to any attorneys who initially
referred the parties to me for ENE services. This preserves and protects the
interests of both parties and any attorneys involved because the parties are
able to make informed decisions regarding the choice between collab law and
litigation, without being forced to change attorneys for litigation, and any
attorneys already involved need not fear losing a client. In addition, if
neither party is represented yet, usually two collab lawyers get new clients
upon my referrals of them to the CDP website.
From my perspective, my version of ENE meets the interests of everyone
involved (parties, attorneys and me), plus it can save the parties a lot of
money compared to the total cost of starting with litigation or collab law
from beginning to end. My experience over the past 10 years has been that
offering ENE as a preliminary process to ambivalent or undecided parties has
been a very successful tool to create more collaborative divorce cases for
the parties and for local collaborative lawyers.
Robert N. Wistner, J.D.
Collaborative Practice for Divorce
5650 Blazer Parkway, Suite 100
Dublin, OH 43017
Phone: 614-734-8354
Fax: 614-553-7138
Email: rwistner@xxxxxxx
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