Collaborative Law in My Iowa Divorce [2010-06-21]
Daniel L. Bray
Family law in Iowa is litigation law. It is a lawsuit filed in equity in an effort by two soon-to-be former spouses to make the transition from being married to becoming single persons again.
During the last several decades, efforts have been made to try and improve people’s experience within the family law litigation process. New and different ideas have changed how cases are processed. Individuals and special interest groups have tried to change some basic aspects of the litigation process. These new ideas have included such diverse efforts as:
- Child custody parental education classes
- Guardian Ad Litems and attorneys for children
- Court supervised settlement conferences
- Child custody evaluations
- Child custody coordinators
- Pro se family law litigation forms and support
- Collaborative law
- Mediation and education about mediation
All of these efforts have in common a search for a more cooperative litigation process. Some of these new efforts have come under the umbrella term of “collaborative law”. “Collaborate” means to work jointly with others. People collaborate when they mutually agree upon things, have combined or joint efforts, and mutually plan and work with each other to achieve a goal or reach a result. There are a variety of authors who have written on the emerging concept of “collaborative law.” An example is Collaborative Law a Second Edition: Achieving Effective Resolution in Divorce Without Litigation by Paul Tesler, published by the American Bar Association, Family Law Section.
In our specialized family law practice at Bray & Klockau P.L.C., we already utilize several important “collaborative” approaches and concepts:
- We believe that each party should have the same information and the same access to information as the other party.
- We stress that when the divorce has begun, both sides should commit themselves to cooperate with each other and voluntarily disclose all documents necessary for resolution of the divorce process. There should be full disclosure by both sides so that both parties can make good decisions together.
- We want clients to learn. When there is a need for education, such as about child custody, both parties should participate in the same education.
- The divorce process ought to be an effective problem solving process.
- Parties can cooperate. For example, the parties can mutually agree to hire one good expert to do one task, such as value real estate, advise on child custody, or value the family business instead of having two “hired guns” that may provide unreliable opinions and increase the costs of litigation.
Collaborative law, as implemented by many practitioners of the concept, seems to have an unnecessary penalty for clients. If the collaborative law process fails, then all of the experts and all of the attorneys involved must withdraw. Then you start over again with a new set of costs and new discovery. This is not a penalty parties should suffer to get cooperation from each other. Parties and attorneys can and should agree to share information and have full disclosure while participating in the litigation process. If the parties fail to reach a resolution under this model, then they can still have the court decide their case without the attorneys and experts withdrawing from the case and incurring the new costs.
Our office has utilized cooperation and collaboration concepts in our practice so that our clients can resolve their family conflicts and effectively make all necessary transitions, personal as well as economic. We will continue to work with lawyers who believe in collaborative law concepts. It is important for clients to understand that the collaborative law process, like many of the new ideas introduced into family law litigation in Iowa over the past several decades, is one of many tools attorneys can use to get a divorce done effectively in a litigation based system. However, it does not solve all of the problems of the divorce process. On the other hand, if everyone has the same set of facts available, has a cooperative attitude, is willing to express clearly their goals and self interest while listening to the goals and self interests of the other party, then the divorce process can be made to work satisfactorily for everyone.
Because of our strong interest to provide cooperative problem solving, I will be taking a national training course on collaborative law November 6th and 7th, 2010 through the American Academy of Matrimonial Lawyers. Watch for my second article on collaborative law after the training.