Oklahoma Academy of Collaborative Professionals
By Jon Ford
In recent years, a collaborative approach to domestic litigation has become more popular nationwide. In light of this trend toward an alternative to litigation, the Oklahoma Academy of Collaborative Professionals (OACP) has been formed as a part of the Oklahoma Bar Association’s Family Law Section. Members of the OACP include attorneys, mental health professionals and financial neutrals such as CPAs and financial consultants, who work together using the collaborative process to reach a resolution to domestic issues. The collaborative process is one that ensures that each marriage partner has accurate information, sound legal advice, solid support in problem solving and decision making and has help to lay groundwork for respectful working relationships among the parties after the actual process is completed.
OACP is associated with the International Academy of Collaborative Professionals (IACP) which includes members from all 50 states and over 20 foreign countries. This entity sets the standards and protocols for collaborative professional teams so that each functions consistently with the other. As a member of IACP, Oklahoma professionals who choose to participate agree to abide by these uniform standards. To become a member of OACP, a person must be a licensed professional in one of the three categories mentioned above. Additionally, each attorney who desires membership must be a member or associate member of the OBA Family Law Section and complete 10 hours of collaborative law training and 40 additional hours of training in mediation, all offered at least annually in Oklahoma. Annual dues for OACP membership are $200 for new members and $150 for renewals.The next training will be on May 29 and 30 in Tulsa.
Collaborative dissolution cases can range from those with many issues to those that are focused on just one or two areas of contention. The parties may be without significant property or may be very wealthy. They may have no children of the marriage or children of ages from birth to virtually the age of majority. There may be unique concerns that need to be addressed, such as a special needs child or a long-time family business or land to be divided. The parties may or may not be in complete emotional turmoil, and there may or may not be a high level of drama in the context of the dissolution action and the surrounding issues; however, if a protective order is in place, the collaborative approach is not an option, as this denotes a relationship dynamic that would not be appropriate for true collaborative efforts.
To begin the process, one party expresses an interest in collaborative resolution to his or her attorney or counselor. That professional contacts the professional engaged with the other party to begin the dialogue about whether both parties are willing to further explore the collaborative option. If there are children involved, collaborative professionals will stress the importance of placing co-parenting as the first priority for the parties. If both parties are interested, each one will review and sign a participation agreement. This agreement delineates the broad terms of a collaborative approach. Parties agree to:
a. Be respectful of the other party.
b. Be transparent in providing financial information to the other spouse.
c. Be fully cooperative in providing information and documents requested.
d. Waive litigation until agreed-to decree is signed and presented to judge for approval.
e. Release their attorneys and coaches if either party proceeds with litigation or if the matter does not settle. This disqualification from participation in litigation is central to the collaborative process and ensures the attorneys are committed to settlement.
Either party may file a petition for dissolution of marriage in an Oklahoma district court to start the clock running for the 90-day waiting period if there are minor children involved. Then, a team is formed, the structure of which is determined by the issues being faced in each individual case. There will always be an attorney for each of the parties, but there may be between one and three coaches participating. The parties could share a coach, each party could have his or her own or there could be one coach for each party plus an additional coach that would act as a child advocate if there is a special needs child or children who wish to have a voice in any custody or visitation issues that affect them directly. Additionally, there can be a financial neutral if there is a substantial amount of property, a unique financial circumstance or one party who lacks financial knowledge.
To start the process, each party is asked to make a list of objectives and immediate needs to be addressed. After these lists are generated, the professional members of the team meet to discuss the parties and the general goals that have been brought to light by the parties’ lists. This briefing process develops the case personality. Professionals are able to strategize their approach to maximize the results of the first meeting with the parties and the entire team. Once the professionals have briefed the meeting, the parties and their respective professionals agree to an agenda for the first meeting. Only the agreed items included on the agenda may be discussed during the initial meeting.
The meeting itself may last not last longer than two hours. The parties and all involved team professionals may attend that meeting. The use of a flip chart is imperative to list issues, alternative solutions and resolutions in a way that all members of the team and the parties themselves are able to reference them throughout the meeting. Parties list optional resolutions in a typical brainstorming approach until a resolution is reached that is satisfactory to both parties. Team professionals will frequently point out successful resolutions as they are reached throughout the process as a way of acknowledging progress. If an emotional outbreak occurs, a coach and his or her party may take a break to regroup, and an attorney and his or her client may privately confer at any point during the process. This meeting is also an appropriate time for the child advocate and/or the financial neutral to report information that will be helpful in the resolution process. Immediately after the first meeting, the professionals will meet to debrief and plan for the next meeting, which will follow the same format as the initial meeting. This process is repeated in the same form as many times as is necessary for the issues to be resolved in their entirety. Once all the issues are resolved by agreement, one of the attorneys prepares an agreed-to decree of dissolution to be submitted to the judge on the case for approval and filing.
Collaborative dissolution proceedings can have any number of benefits, ranging from short-term practical benefits to long-term benefits that are not as tangible. One obvious benefit to the process is that attorney fees and attendant costs are usually much less than in traditional domestic litigation. This reduction is simply due to the number of hours that the attorney spends preparing for and attending the meetings. Since the issues addressed and the time set for the meetings is predetermined, unlike litigation, the attorneys are able to more accurately predict costs of a collaborative approach. Although it might seem on the surface that engaging a full interdisciplinary team to address the parties’ goals would be prohibitively expensive, it actually remains a much more cost-effective way to resolve all issues, as everyone whose expertise might be required is located in the same meeting at the same time, so answers to relevant questions are readily available. Most professionals also charge more for courtroom time to testify, and less for office time to consult or prepare, so parties can receive essentially the same information they would receive in the courtroom from the witness stand for a lower hourly rate. Also, parties can make agreements regarding real world objectives that are simply outside the purview of the court, for instance, payment of college expenses on behalf of a child who has reached the age of majority or co-parenting issues that reach beyond the scope of the court but can be contractually agreed upon by the parents.
In a greater sense, the collaborative approach creates resolution to highly polarized issues that is focused on shared agreements between the stakeholders rather than the typical “scorched earth” approach found in domestic litigation under a traditional approach. With everyone, sometimes including children, sharing in the solution, co-parenting is a realistic outcome and expectation of the parties. Collaborative resolution allows the children who live through parents’ dissolution to see a model from both parents of a civil and functional way to handle high conflict or difficult situations. Because the collaborative approach allows people to maintain self-respect and respect for others during a time of high stress, the process itself supports positive choices and supports agreement and consensus that the adversarial process by its very nature does not. Collaboration also creates the framework for settling future disputes between the parties and models a form of discussion that reduces confrontational interaction and counterproductive communication. Due to this learned approach to problem solving, fewer, if any, motions to modify are ever filed in domestic cases resolved through collaboration. Because the parties no longer reside within the same household, effective dealings between them, as well as within the newly created family dynamic, become even more essential. Parties who share children will be required to maintain some type of relationship for the foreseeable future, if not forever, so it is important that the relationship be functional.
OACP maintains a website regarding all aspects of the collaborative approach, as well as details for potential clients and professionals interested in learning more about the approach or membership in OACP, as well as contact information for current professional members. That information can be found at www.Your DivorceChoice.com.
Collaborative approach to resolution of legal issues is the wave of the future. Although OACP focuses on domestic litigation as it involves the highest level of emotion in all areas of the adversarial process, it can be applied to every type of case in which there are issues to be resolved. By working together, parties complete the process with a sense of investment in the outcome that they helped to create and a better experience with the legal system in general. Through this approach, attorneys can contribute in a meaningful way to a better perception of the profession and a more viable way for families to move forward in relationship to one another.
Insert: Incorporating Early Settlement Mediation in Collaborative Divorce
By Marcy A. Thomas
While recently attending an advanced training on collaborative law, held by the Oklahoma Academy of Collaborative Law Professionals, it became apparent that many attorneys are not aware of all of the services available to their clients.
Collaborative law is defined as a “process by which both parties and their counsel contractually commit themselves to resolving their differences justly and equitably without resort, or threat of resort, to the courts. If the parties do not reach settlement, the attorneys must withdraw and send clients to trial attorneys.”1 There are numerous attorneys already practicing this type of law throughout Oklahoma.
There are various models of the collaborative law process. Each model is similar in that they all include attorneys. Some models include mental health professionals and some financial advisors. Each model is discussed with the client to ensure that their case is handled in the correct fashion. If additional professionals are added to the process, they too are contractually bound.
One such model in collaborative law is referred to as a MediCollab. This model was developed in California and has seen much success all over the United States. In this model, each party hires a collaborative law attorney, and they agree to attend mediation with a neutral mediator. The attorneys may attend, or may choose not to, depending on their level of comfort with their client’s ability to effectively communicate settlement options. After the mediation session or sessions, the mediator gives the attorneys a memorandum of understanding so the attorneys can prepare the proper paperwork to present to the court.
Early Settlement Mediation is made up of 12 regional offices throughout Oklahoma. This program is authorized and funded through the Oklahoma Dispute Resolution Act.2 The fee for the mediation service is included in every civil filing fee collected by the courts, or $5 per party should there be no case filed. Using Early Settlement Mediation helps the collaborative lawyer to conserve his or her client’s money.
“Family and divorce mediators for early settlement are required to complete forty hours of training specific to divorce issues and must mediate or co-mediate for 12 clock hours while supervised and work with three to five different families before they are recommended for state certification.”3 The success rate for the Early Settlement Mediation program in family and divorce cases is similar to that of a private, hourly fee based mediator. In 2012 alone, 1,449 family and divorce mediations were held with 997 (65 percent) resulting in partial (208) or complete (729) agreements.
Using Early Settlement Mediation when following the MediCollab model of collaborative law not only saves the parties money, it also offers a high level of confidentiality. They are guaranteed to have a neutral, certified, third party mediator at each session and can return as often as they would like.
Collaborative law was developed with the goal of allowing parties to go through the process of a divorce civilly. Incorporating your local Early Settlement Mediation program aids this goal and enhances the necessary communication between clients without additional fees.
More information can be found at: www.oscn.net/static/adr/default.aspx
Ms. Thomas is the director of the Early Settlement Mediation program at Rogers State University in Bartlesville. She is a 2012 graduate of the TU College of Law.
1. Levine Trusch, Norma. “Working with Neutrals.” Powerpoint presentation. Oklahoma State University, Tulsa, OK, 20 Sept 2013.
2. 12 O.S. Supp. 1997, §1801 et seq.
3. Sue Darst Tate, 2012 Annual Report, Alternative Dispute Resolution System, (Oct. 12, 2013, 8:17 AM) http://www.oscn.net/static/adr/
4. Id. at 5.