Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, Third Edition / Edition 3

by Pauline Tesler

Overview

Since the first edition of Pauline Tesler’s groundbreaking book, Collaborative Law, there has been an explosion of interest in this dispute resolution method. Now substantially revised and considerably expanded, Collaborative Law serves both as a comprehensive introduction to collaborative legal practice for those new to the area as well as a current reference for more experienced practitioners. Reflecting the developing interest in collaborative representation, this new edition covers the theoretical and practical advances made in the field and features significant additional information on topics such as ethics, marketing, and public education, as well as new forms for use in a collaborative law practice.

Explaining the goals and processes of collaborative law, this guide serves as a broad introduction for practitioners new to the area as well as a current reference for more experienced practitioners. Tesler clearly discusses the core concepts, techniques, and approaches that really work. Topics include:

• An overview of collaborative law
• The three stages of a collaborative case
• Concepts and tools for effective collaborative family law practice
• Key moments in a collaborative representation
• Statutes, rules, standards, and protocols
• Sample documents and forms
• Marketing your collaborative practice
• Collaborative law beyond family law, and more

Product Details

ISBN-13:	9781634254700
Publisher:	American Bar Association
Publication date:	02/01/2017
Edition description:	3rd Edition
Pages:	400
Product dimensions:	6.90(w) x 9.90(h) x 1.00(d)

About the Author

The founding director of the Integrative Law Institute at Commonweal is Pauline Tesler, a graduate of Harvard University, the Victoria Universityof Manchester (England), and the Universityof Wisconsin Law School. Her first work after graduating from law school at the top of her class was as a lawyer for the National Center for Youth Law, working with an outstanding team of public interest lawyers in San Francisco conducting class actions, major impact litigation and test case appeals on behalf of impoverished women and children. Her cases challenged coercive use of drug therapies in public schools for children with ADHD, foster-care policies that disregarded children’s bonds with parent figures, and incarceration of juvenile offenders without either due process or treatment. Pauline and her colleagues devised and argued the successful legal theory that persuaded the California Supreme Court to strike down funding restrictions on poor women’s access to abortions on the grounds that those restrictions violated privacy rights under the California Constitution. This legal victory resulted in California extending to this day an uninterrupted range of reproductive choices for women regardless of age or economic status. After federally funded law reform centers like the National Center for Youth Law were defunded during the Reagan administration, ILI’s director transitioned into private law practice, becoming a partner in the first all-women family law firm in Northern California and subsequently starting her own law practice. She has worked as a solo change agent for the past twenty years, aiming to revitalize the legal profession through her specialist collaborative family law practice and her international lawyer training programs.

A longtime California “Superlawyer” who is included in “Best Lawyers in America,” and a fellow of the select American Academy of Matrimonial Lawyers as well as the ABA's American Bar Foundation, Pauline's credibility as a successful trial and appellate advocate opens the door for even aggressive litigators to listen to what she has to say. Testimonials from her workshops over nearly twenty years confirm her gift for reaching even the toughest adversarial lawyers through their heads and sending the message from there into their hearts. Pauline’s workshops, books, journal articles and speaking have been a key catalyst for an international movement called “Collaborative Law” that is changing the face of family law in 28 nations. In recognition for that work, she received the first “Lawyer as Problem Solver” award from the American Bar Association's Dispute Resolution Section in 2002.

As Pauline accepted invitations to teach lawyer colleagues around the world how to work in collaborative professional teams with mental health and financial professionals, she became convinced that law as it relates to all disputes between human (non-corporate) persons is and ought to be a healing profession. She saw that the American legal profession is on the verge of a sea change much like the one that has transformed healthcare over the past thirty years in directions that are humanistic, multi-disciplinary, collaborative, and team-based. In 2008, Pauline began teaching collaborative and other lawyers a groundbreaking workshop course she developed with psychiatrist Thomas B. Lewis, M.D. (author of A General Theory of Love) entitled “Law and the Human Brain: NeuroLiteracy for Lawyers, Mediators, and Judicial Officers,” at conferences and by invitation from law schools, bar associations and other lawyer organizations. This was the start of Pauline’s current work building the broad change movement called Integrative Law. In order to devote full-time efforts to her work as a change agent and teacher.

In 2012, Pauline launched the Integrative Law Institute at Commonweal, shifting her focus to the nonprofit sector and developing a strategic plan for catalyzing a movement led by change-agent peacemaker lawyers across North America and in key locations worldwide. ILI programs are targeted to reach lawyers working across the full spectrum of interpersonal conflict resolution, as well as teaching values-based transactional work based on constructive planning for respectful conflict resolution.

For more information:

Commonweal website: http://www.commonweal.org/program/integrative-law-institute/

Blog: www.integrativelawinstitute.org

Twitter: @integrative_law

Email: [e-mail]

Table of Contents

List of Tables xiii

List of Sidebars xv

About the Author xvii

Preface to the Third Edition xix

Foreword to the Second Edition xxv

Foreword to the First Edition xxix

Acknowledgments for the Third Edition xxxiii

Acknowledgments for the Second and First Editions xxxv

Introduction to the Third Edition xxxvii

Introduction to the Second Edition xxxix

Introduction to the First Edition xli

Chapter 1 Why Collaborative Law, Why Now? 1

Notes 6

Chapter 2 Overview of Collaborative Law 11

Notes 23

Chapter 3 Becoming a Collaborative Lawyer: The Retooling Process 27

It's Not for Everyone 27

Making the Paradigm Shift Happen 30

The Four Retooling Questions 31

The Four Dimensions of Retooling 39

The First Dimension: Retooling Yourself 39

The Second Dimension: Retooling with the Client 42

The Third Dimension: Retooling with the Other Players 45

The Fourth Dimension: Retooling Negotiations 48

Notes 52

Chapter 4 Overview: The Three Stages of a Collaborative Law Case 59

Act One 59

Act Two 70

Act Three 74

Notes 80

Chapter 5 The Nuts and Bolts of Effective Collaborative Family Law Practice 85

Key Concepts and Tools 85

Notes 98

Chapter 6 Key Moments in a Collaborative Representation 105

Making First Contacts with Other Participants 105

1 First Communications with Your Client 105

2 First Contacts with the Other Party 116

3 First Contacts with the Other Collaborative Lawyer 118

4 First Contacts with Other Collaborative Professionals 119

Preparing the Client for the Four-Way Meeting 124

The Pre-Meeting and Post-Meeting Conferences Between Counsel 125

Apparent Impasse in Negotiations 127

Notes 134

Chapter 7 Statutes, Rules, Standards, and Protocols for Collaborative Law Practice 139

Statutory Recognition of Collaborative Law 142

Congruence of Collaborative Legal Practice with Ethics Rules 143

Reported Appellate Decisions Addressing Collaborative Practice 144

Collaborative Law in the Larger Alternate Dispute Resolution (ADR) Context 145

Standards for Collaborative Legal Practice 146

Protocols for Collaborative Legal Practice 147

Informed Consent: How Much and About What? 152

Malpractice Claims and Collaborative Legal Practice 153

Conclusion 157

Notes 163

Chapter 8 Documents and Useful Forms 169

Comments on the Use of These Forms 171

Intra-Office Forms 171

Initial Telephone Screening Form 171

New Client Basic Information Form 171

The Collaborative Retainer Agreement 171

Sample Letters to Prospective Clients, Spouses of Clients, and Lawyers for Spouses 172

Financial Disclosure Forms 173

Documents Establishing and Supporting a Collaborative Case 173

Principles and Guidelines for the Practice of Collaborative Law 174

Participation Agreement, or Stipulation and Order 175

Sample Letters Retaining Collaborative Neutral Experts/Consultants 177

Sample Recitations Re: Collaborative Representation and Informal Discovery to Include in Marital Settlement Agreements 177

Sample Provision Re: Resolving Future Disputes to Include in Marital Settlement Agreements 178

Documents Ending a Collaborative Representation 178

Amendment of Participation Agreement When Clients Elect Mediation 179

Final Letter at Time Divorce Is Concluded 179

Notice of Withdrawal of Collaborative Counsel 180

Notice of Termination of a Collaborative Case 181

Data-Gathering Forms 181

Internal Data-Gathering and Evaluation Form 182

Practice Group Data-Gathering and Evaluation Forms 182

IACP Survey Form 183

Notes 183

Chapter 9 Developing and Marketing Your Collaborative Practice 185

Practice Groups: The Sine Qua Non for Practice Development 185

Other Practice Development Ideas 198

Conclusion 201

Notes 201

Chapter 10 Collaborative Law Beyond Family Law 205

Notes 220

Chapter 11 Frequently Asked Questions About Collaborative Law 223

Appendix I Tools and Resources for Lawyers 237

Appendix I.A Intra-Office Forms 239

1 Initial Telephone Screening Form 239

2 New Client Basic Information Form 240

3 The Collaborative Retainer Agreement 243

4 Sample Letters to Prospective Clients, Spouses of Clients, and Lawyers for Spouses 257

5 Financial Disclosure Form 269

Appendix I.B Documents Establishing and Supporting a Collaborative Case 275

1 Principles and Guidelines for the Practice of Collaborative Law/Collaborative Divorce 275

2 Participation Agreement or Stipulation and Order 285

3 Sample Letters Retaining Neutral Collaborative Experts/Consultants 295

4 Sample Recitations Re: Collaborative Representation and Informal Discovery to Include in Marital Settlement Agreements 299

5 Sample Paragraph Re: Resolving Future Disputes to Include in Marital Settlement Agreements 301

Appendix I.C Documents Ending a Collaborative Representation 303

1 Amendment of Participation Agreement "When Clients Elect Mediation [An Example That Can Be Adapted as Needed] 303

2 Final Letter at Time Divorce Is Concluded 305

3 Notice of "Withdrawal of Collaborative Counsel 307

4 Notice of Termination of Collaborative Case 309

Appendix I.D Data-Gathering Forms 311

1 Internal Data-Gathering and Evaluation Form 311

2 Practice Group Data-Gathering and Evaluation Forms 317

3 IACP Survey Form 325

4 Collaborative Council of the Redwood Empire Data Mining: Closed Case Collection Form 327

Appendix I.E A Collaborative Divorce Case History 329

Appendix I.F Roadmap of the Collaborative Divorce Process 335

New York Association of Collaborative Professionals 335

Appendix I.G Talking Points for First Collaborative Legal Meeting 339

Appendix I.H Lawyer Conference Checklist 343

First Meeting between Lawyers 343

Appendix I.I First Four-Way Meeting Checklist 347

Appendix I.J Metaphors for Collaborative Practice 351

Whitewater Rafting 351

Mountain Climbing/Rock Climbing 352

The journey through the Deep, Dark Woods 352

Divorce as a Trip from Here to There 353

Airplane Travel as a Divorce Metaphor 354

Divorce as a Birthing Process 354

Durable Power of Attorney 354

A Peculiar Sort of Marathon 355

The Sack Race 356

Training Horses 356

Appendix I.K International Academy of Collaborative Professionals Standards and Ethics 357

Prefatory Comments to Standards and Ethics 357

International Academy of Collaborative Professionals 358

Summary of IACP Trainer Requirements 372

Appendix I.L ABA Committee on Ethics Opinion 373

Standing Committee on Ethics and Professional Responsibility 373

Notes 375

Appendix I.M When a Collaborative Case Is in Trouble 377

Appendix I.N Sample Rules for Practice Group Membership 381

Article 3. Members 381

Appendix I.O Resources 387

Bibliography 387

Articles 387

Books 390

Research Reports about Collaborative Law and Interdisciplinary Collaborative Team Practice 393

Websites 394

Appendix II Client Handout 395

Collaborative Divorce Handbook 397

Your Choices for Professional Legal Help with Ending a Marriage or Domestic Partnership 397

Index 421