Collaborative Divorce Handbook E-Book

Forrest S. Mosten

• Herausgeber: John Wiley & Sons
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 435

Veröffentlichungsjahr: 2009

Beschreibung

Forrest S. Mosten Collaborative Divorce Handbook Helping families without going to court Praise for Collaborative Divorce Handbook "There are many roads to peace. Whether you engage in collaborative practice, which by definition includes the provision that professionals will not represent the parties in litigation, or some other process for respectful conflict resolution, you will find Collaborative Divorce Handbook to be an invaluable resource for deepening your understanding and enhancing your skills as a peacemaker." --Talia L. Katz, JD, executive director, International Academy of Collaborative Professionals "Collaborative lawyering is a promising new way of resolving disputes through joint problem solving rather than adversary litigation that has particular appeal for divorce cases. Whether you are a client who seeks to learn more about it or a lawyer using it who desires a wise guiding hand, this book is an invaluable resource." --Frank E. A. Sander, Bussey Professor Emeritus, Harvard Law School "Written by one of the innovative thinkers in the field, Collaborative Divorce Handbook is a treasure of information for all professionals interested in collaborative divorce. Easy to read, expansive, and chock-full of resources, it is bound to become a classic." --Constance Ahrons, PhD, author, The Good Divorce and We're Still Family, and professor emerita, University of Southern California "Family law is changing. As more people realize that the adversarial process is expensive, degrading, and stressful, they look for alternatives and find it in various forms of alternative dispute resolution. Woody Mosten is the nationally recognized leader of this movement, and his book on collaborative practice literally will be 'The Handbook' we will all follow." --Garrett C. Dailey, Esq., CFLS, AAML, president, Attorney's BriefCase, Inc.

Leseprobe

Table of Contents

Praise

Title Page

Copyright Page

Dedication

Preface

Acknowledgments

CHAPTER ONE - A Paradigm Change from an Adversarial to a Collaborative Perspective

THE DEVELOPMENT OF A COLLABORATIVE APPROACH

AN INTERDISCIPLINARY APPROACH

UNDERSTANDING THE PARADIGM SHIFT

TWO STEPS FORWARD, ONE STEP BACK

COLLABORATIVE DIVORCE IS ONLY THE BEGINNING OF THE PARADIGM SHIFT

CHAPTER TWO - Collaborative Divorce WHAT IT IS AND HOW IT WORKS

VALUES AND PRINCIPLES OF COLLABORATIVE LAW

THE COLLABORATIVE DIVORCE PROCESS

COLLABORATIVE: WHAT’S IN A WORD?

HOW THE COLLABORATIVE DIVORCE PROCESS WORKS

LAWYERS IN THE COLLABORATIVE PROCESS

MENTAL HEALTH PROFESSIONALS IN THE COLLABORATIVE DIVORCE PROCESS

FINANCIAL PROFESSIONALS

CHAPTER THREE - How Collaborative Divorce Works with Mediation and Unbundled ...

UNBUNDLING

UNBUNDLING LEGAL SERVICES OUTSIDE THE COLLABORATIVE FRAMEWORK

SYNERGIES AND DIFFERENCES BETWEEN COLLABORATIVE PRACTICE AND UNBUNDLING

MEDIATION AND COLLABORATIVE DIVORCE: COMPATIBLE GOALS, SKILL SETS, AND ...

USING MEDIATION AND COLLABORATIVE LAW TOGETHER

SEVEN WAYS THAT MEDIATION AND COLLABORATIVE PRACTICE INTERSECT

CHAPTER FOUR - Toolbox of Strategies for Collaborative Agreement

TOOLBOX APPROACH

YOUR STARTER TOOLBOX FOR AGREEMENT BUILDING

CHAPTER FIVE - The Interdisciplinary Approach of Collaborative Divorce

COLLABORATIVE DIVORCE ORGANIZATIONS

STRUCTURING THE INTERDISCIPLINARY PRACTICE MODEL

CHAPTER SIX - Informed Consent and Other Best Practices to Ensure Competence

COMPETENCE LEADS TO CLIENT SATISFACTION

COLLABORATIVE PARTICIPATION AGREEMENT

IACP AND LOCAL STANDARDS OF PRACTICE

KEY RESOURCES FOR INFORMED CONSENT AND BEST PRACTICES

QUESTIONS AND ANSWERS ABOUT ETHICS AND COMPETENT SERVICE

THE BENEFITS AND RISKS OF COLLABORATIVE PRACTICE: A TEMPLATE FOR DISCUSSION

CHAPTER SEVEN - Making Collaborative Divorce Practice Your Day Job

CAN I DO THE WORK?

DO I HAVE THE PERSONAL ATTRIBUTES AND SKILL SET TO BE AN EFFECTIVE ...

CAN I MAKE COLLABORATIVE PRACTICE MY DAY JOB?

CHAPTER EIGHT - Building a Profitable Collaborative Practice

INVEST TIME AND DOLLARS IN YOUR PRACTICE

OFFER ADDITIONAL COLLABORATIVE PROFESSIONAL SERVICES

BUFF UP YOUR TELEPHONE AND E-MAIL INTAKE PROCEDURES

MAKE YOUR OFFICE A CLASSROOM OF CLIENT EDUCATION

OFFER INTANGIBLE BENEFITS TO CLIENTS

BE CLEAR ABOUT YOUR FEES

MARKET YOURSELF IN NUMEROUS WAYS

CHAPTER NINE - Walking the Collaborative Walk TAKING TWENTY-FIVE STEPS ...

LAST THOUGHTS

Glossary

APPENDIX A - Additional Resources

APPENDIX B - Resources on Collaborative Divorce Handbook Web Site

Bibliography

About the Author

About the Contributors

Index

MORE PRAISE FORCOLLABORATIVE DIVORCE HANDBOOK

“Forrest Mosten’s Collaborative Divorce Handbook should be the first book any collaborative professional buys. In clear reading style, the author takes the reader through the beliefs and practice of collaborative divorce and also provides the reader with an outstanding bibliography.”

—Harry Tindall, Collaborative Family Lawyer, Member of Academy of Matrimonial Lawyers, Houston, Texas. Author of the first collaborative law enacted in the United States (Texas) and Member of Drafting Committee of Uniform Collaborative Law Act

“Since starting his legal career as a founding partner of Jacoby & Meyers in 1972, Woody Mosten has been a pioneer in making the legal system more accessible to the average person. His book on collaborative practice will be an invaluable training resource for our lawyers and clients.”

—Len Jacoby, Senior Partner, Jacoby & Meyers

“In his latest book, Woody Mosten proves not only that he is in a class of his own in terms of his knowledge and experience about collaborative divorce practice. He addresses practice and procedural issues primarily from a lawyer’s perspective, but he does not shirk the issues germane to mental health or financial professionals. Most important, the value he places on peacemaking and family healing set a tone that pervades each chapter, leading the reader toward a higher form of practice that will ultimately benefit individual clients and the entire family.”

—Marsha Kline Pruett, Ph.D., M.S.L., Maconda Brown O’Connor Professor, Smith College and School for Social Work

Copyright © 2009 by John Wiley & Sons, Inc. All rights reserved.

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Library of Congress Cataloging-in-Publication Data

Mosten, Forrest S., date.

Collaborative divorce handbook : helping families without going to court / Forrest S Mosten.

p. cm.

Includes bibliographical references and index.

eISBN : 978-0-470-52856-3

1. Divorce suits—United States. 2. Dispute resolution (Law)—United States. 3. Divorce mediation—United States. I. Title.

KF535.M674 2009

346.7301’66—dc22

2009025596

PB Printing

To Jordana, Derek, and, of course, my beacon, Jody (again)

Preface

Mention the words divorce lawyer to most people, and the worst of lawyer jokes come to mind. In fact, successful matrimonial practitioners often reinforce this image with statements like the following by a family law litigator that was published in the Los Angeles Times on March 18, 2006: “We are not mediators. . . . We’re meat eaters. If you treat us nice, we treat you nice. If you don’t, it’s a whole different ballgame.”

It is not that we collaborative professionals do not understand or cannot succeed in the traditional adversarial system. Many of us worked in litigation for years. But this experience led us to yearn for a system in which we were not constantly struggling against our client’s spouse and attorneys, other family professionals, and sometimes (unwittingly) our own clients.

After thirty-six plus years, practicing law and developing my own satisfying career, I (and many collaborative colleagues worldwide) have found ways to help families survive during one of the most difficult and traumatic events of their lives: divorce. This did not come easily. It took many years of trial and error on my part, trying to find my own voice, to define a practice that is resonant with my skills, personal qualities, and desire to help families.

I never go to court because I believe that adversarial jousting is a pernicious and destructive process. I have a bedrock belief that most disputes can be resolved by the parties themselves because they have the answers within them. Courts are important and necessary institutions—but court should be used as the last resort except in those relatively rare situations when emergency protection is needed.

If I don’t go to court, how do I spend my working day? What I do is meet with people, individually and in groups with lawyers, accountants, extended family members, and their therapists, to help resolve their conflicts, and I talk on the phone with them. I write up the notes of their progress and draft their final agreements.

I get to solve challenging problems, grapple with intellectually stimulating issues, have supportive and kind colleagues, and, most important, have an opportunity to make a difference in other people’s lives. I have control over my time, I never have to go to court, and if my health holds up, I cannot imagine ever retiring.

I serve as a mediator. I serve as a collaborative law practitioner. I represent clients’ relationship agreements before and during marriage. I sometimes serve as an expert witness or as a dispute resolution consultant for other family lawyers. I serve as a full-time family lawyer outside the courthouse. I have found a way to maximize my desire to help others and at the same time derive personal satisfaction from peacemaking, my life’s work.

The description of my practice is not unusual. Throughout the world, thousands of professionals help divorcing families using similar values yet differing models.

Collaboration is the mortar that binds the various thriving divorce models to offer alternatives to the adversarial court system. Rather than preemptively using power and leverage to gain the upper hand, collaborative professionals trust the best in their clients and in each other. Collaborative professionals work together toward the common end of helping spouses and their children resolve their divorces and begin to heal fairly, fast, with dignity, and at reasonable cost.

This book is not a treatise, a training manual, a scholarly tome, or a call to arms for collaborative divorce practice. This is a handbook, written through my eyes and career experience. It is written to those of you who might be searching in any one of the following ways:

• If you have been thinking about entering the collaborative divorce field, this book may be a resource and possibly give you the encouragement to attend a training, read another book, or talk to professionals in the field.

• If you are already a collaborative divorce professional, this book might give you a new perspective on how collaborative divorce builds on the progress of other client-centered practice models. And it may give you new strategies for offering different services that clients will pay for and increase the competence and profitability of your practice.

• If you are just curious about the field, this book may help you adopt collaborative thinking and skills in your current practice or perhaps refer clients to other collaborative professionals.

This book is written for potential collaborative professionals:

• Lawyers who currently practice or wish to practice family law in a client-centered and less adversarial manner

• Therapists and social workers who work with divorcing families and wish to increase their interdisciplinary collaboration and family systems involvement

• Accountants and financial planners who want to help divorcing families with preventive and constructive tools to meet their current expenses and best invest their remaining assets so that they can rebuild again

• Clergy, educators, judges, and others who create policy or work in nonprofit or public institutions that help divorcing families who want to support positive, healing, and cost-effective methods of helping people through divorce

Chapter One begins with an exploration of the traditional adversarial approach and a major paradigm shift toward a more client-empowering collaborative approach. The foundational values and aspects of this collaborative practice are set out in Chapter Two, which takes you step by step through the process.

Chapter Three describes how the legal access model of unbundled legal services and the growing field of mediation paved the way for collaborative practice. It explores how collaborative professionals can incorporate mediation into the collaborative process and use their collaborative skills and perspective to both mediate and serve as consulting representatives and experts in mediation facilitated by other neutrals.

Chapter Four focuses on cutting-edge negotiation strategies pulled from my own toolbox that you can use in both collaborative practice and in more traditional approaches with your current clients.

Chapter Five discusses the interdisciplinary approach of collaborative practice and examines various team models on which mental health professionals, financial professionals, and lawyers can serve.

Chapter Six examines recent ethical opinions requiring informed consent by clients before starting the collaborative process, and it highlights the best practices in the field to ensure competence. The chapter features sample questions that clients might ask and gives answers that you can use immediately.

Chapter Seven lays out a career preparation plan for you to make collaborative divorce practice your day job. A potpourri of strategies and tips to market this practice, maximize intake, and profitably manage your collaborative divorce practice is gathered in Chapter Eight. And Chapter Nine provides a road map and concrete tips for you to make a transformative impact on your clients and maximize collaboration with your colleagues by using peacemaker values and perspectives.

The Appendix and Resources on the book’s Web site, www.josseybass.com/go/collaborativedivorcehandbook, are designed to give your collaborative career a kick start and provide you with a tool kit for you and your clients.

Finally, voices of collaborative professionals from different professions worldwide who share their joy, challenges, and success in this emerging practice area are provided on the book Web site, and excerpts from many of these practitioners are set out throughout the book. I hope that this book will help you find your voice as my colleagues already in the collaborative community and I have found ours.

Acknowledgments

As a sole practitioner in private practice, I generally work alone. I also teach and write alone. Therefore, my professional friends and colleagues with whom I collaborate become even more important to me . . . and there are many whom I wish to acknowledge.

To attempt to write a book in the face of my practice and training schedule is lunacy at best. One of the perks of being on a law school faculty is the opportunity to meet and work with the best minds of the next generation. I am very fortunate that Allison Holcombe, a third-year law student and UCLA Law Review Symposium editor, agreed to assist me in this project. Allison’s research and editing skills are flawless, and her collaborative work ethic made her fit right in. Her future is limitless, and her imprint will remain with this book.

Every day, I have the pleasure of working with Rebecca Smith, my conflict resolution assistant. A peacemaker herself with a master’s degree in conflict resolution, Rebecca has constantly given flexible, competent, and good-natured support to both our clients and colleagues involved with this book.

My peacemaker colleague Barbara Brown provided me timely and helpful input when she did not have the time to give and did heavy lifting to compile the foundation for the bibliography.

My colleagues in the peacemaking and legal world have taught me more than I can properly acknowledge.

My appreciation goes to Will Hornsby and my friends who have served on the American Bar Association (ABA) Standing Committee of Legal Services who have given unbundling a permanent home.

My close friends at the Association for Conflict Resolution, the Association of Family and Conciliation Courts, Family Court Review, the International Academy of Collaborative Professionals, Southern California Mediation Association, Los Angeles County Bar, and the ABA Dispute Resolution Section have taught and supported me for decades. Particular thanks go to Andy Schepard, Peter Salem, John Wade, Larry Mills, John Lande, Jay Folberg, Len Riskin, and Lela Love for their constant inspiration and support.

Over fifteen years ago, I was a member of small band of legal outlaws called the Innovative Lawyering Group. As vagabonds, we met in various locales and dreamed about the future together. A quiet and determined member of that group was Stu Webb, whose accomplishments need no description. In our own ways, we have blended a recipe of collaborative practice, family law, mediation, and unbundling that continues to add new and exotic ingredients. In the past years, I have developed a respect for and friendship with Stu’s coauthor, Ron Ousky, past president of the International Academy of Collaborative Professionals, who flew out to Los Angeles to attend my inaugural peacemaking lecture at the University of California, Riverside (http://www.religiousstudies.ucr.edu/Mosten/annual_lecture/index.html), which meant more than I can express.

I cannot thank sufficiently my collaborative colleagues worldwide who have lent their voices to this book. I am particularly grateful to David Hoffman, Pauline Tesler, and Nancy Cameron, whose own brilliant books were central to my thinking and whose support for this book demonstrates collaboration at its best.

Home is where the heart is; it is also where I can get in my car to visit and train others. Southern Californian collaborative practice groups make up my professional home. I acknowledge my continual appreciation for Frederick J. Glassman, Joe Spirito, Kathleen M. O’Connor, Mary Elizabeth Lund, and all my friends at the Los Angeles Collaborative Family Law Association and contributing collaborative practice groups who make my life’s work possible—and fun.

In acknowledgments, authors generally thank their editor. In this case, Seth Schwartz gets a double dose of gratitude. Seth has always believed in me. He also believed in this book about collaborative practice, and he helped me make it the best book possible.

Authors also always thank their spouses. No words of thanks are enough for Jody. With a full practice as a clinical psychologist and our family and home that she cherishes and need her attention, Jody has done it again: encouraged me when I said I needed to write this book. She then suffered through my perspiration (which far outweighed the inspiration) and never left the staging area during the last weeks prior to manuscript submission: feeding, cajoling, editing, copying, and without exception, expressing approval and love, none of which I could do without.

August 2009

Forrest S. MostenLos Angeles, California

CHAPTER ONE

A Paradigm Change from an Adversarial to a Collaborative Perspective

In the last quarter century, the process of resolving family law disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room.

ANDREW SCHEPARD AND PETER SALEM (2006)

When I became a mediator in 1979 and began speaking to lawyer groups, I heard a frequent resistant refrain: “I mediate every day, and so do most of the lawyers I settle cases with. Why would we need a mediator?” Most of my law clients and referral sources did not know what mediation was, and some clients confused the process with “medication” or “meditation.”

We have come a long way in the past three decades. Today mediation is embraced and encouraged, understood (at least in many circumstances), and valued for its contribution as a legitimate process in the world of dispute resolution. The same is true for collaborative divorce. Regardless of your profession, you must understand and be able to articulate the many differences between the adversarial approach and collaborative divorce to truly help your clients make informed decisions and to effectively market your practice.

THE DEVELOPMENT OF A COLLABORATIVE APPROACH

In her monumental book, The New Lawyer (2008b), Julie Macfarlane identifies the three professional beliefs that are the bedrock of traditional lawyers’ thinking: a rights-based orientation, a confidence that courts will produce the best justice for clients, and a mind-set that lawyers should be in charge. Macfarlane finds that these beliefs result in a system that is not only inefficient but creates a disempowerment of clients in favor of their lawyers: