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Pennsylvania Collaborative Practice

Offering Choices to Clients in Legal Disputes

By Linda S. Pellish, Esquire

“There has to be a better way!” Each time I walked into the courthouse for another divorce, support or custody hearing, I could hear those words running through my head. Each time I witnessed clients attempting to create a winning result for themselves at the expense of someone on the other side of the dispute, I would think that there had to be a way to bring resolution to these differences which is more respectful and dignified for clients and their attorneys, and which takes into consideration each party’s interests to arrive at a solution to the conflict.

I believe that legal conflict among families—whether it appears in a domestic case involving divorce, support and custody, in family business differences or in family estate issues—should be viewed by attorneys as an opportunity to provide options for the way the dispute is resolved so that the end result is a family that is restructured, not destroyed.

This belief compelled me to search for resolution methods beyond the traditional litigation model (the “battle in court” model with which most clients are familiar) that I could offer to clients when they come into my office. I started my search for that alternative early in 2004, and it has led me on an amazing path to bring choices of process to clients and to colleagues.

From Conviction to Reality

In the spring of 2004, having spent too many hours in particularly contentious custody or divorce battles, I met a colleague who informed me of training in Mediation that would alter the course of my legal practice and honor my belief system. I registered for this training at the Center for Mediation in Law in New York and, after five days with top experts in the field, I learned mediation theories and techniques that focused on the well-being of clients to help them resolve their differences with respect rather than with destructive rancor.

During that training I interacted with an instructor who told me that he not only provided mediation services to his clients but he also offered the Collaborative Practice option. The Collaborative option was new to me, but as we talked I learned more about the process which used the skills and focus of mediation in a setting involving a trained collaborative attorney representing each client. This is in contrast to a single neutral mediator who cannot provide individual legal advice to either party in a mediation setting. In the Collaborative process, the lawyers and the clients engage in open and transparent exchanges of information during four-party settlement meetings with primary goal being the resolution of the conflict by mutual agreement. The mediation model and the Collaborative model both seemed to be such reasonable and dignified options for clients and I immediately decided to learn as much as I could about each.

Since that initial exposure in 2004, I have participated in extensive mediation trainings at the initial, intermediate and advanced levels. I have become a certified mediator with the United States District Court in the Middle District and have mediated employee disputes, school discrimination disputes and motor vehicle accident cases. I also serve on the Schuylkill County Bar Association Alternative Dispute Resolution subcommittee as an approved mediator.

In addition, I have attended extensive trainings about the Collaborative process, from introductory two-day sessions in Rochester, New York, Harrisburg and Lebanon, Pennsylvania, to an intensive five-day advanced session in Ossining, New York. I have completed several programs involving interdisciplinary collaborative practice and I have also participated in a two-day seminar on high conflict personalities in Philadelphia, and another two-day program on non-defensive communication in Harrisburg. I have attended two Forums sponsored by the International Academy of Collaborative Professionals in Atlanta and Toronto where hundreds of collaborative professionals from around the world gather for training and networking opportunities.

To further my commitment to these dispute resolution models, I joined the Pennsylvania Bar Association Alternative Dispute Resolution Committee in 2006. Subsequently, a Collaborative Law subcommittee was formed. I served as co-chair of that subcommittee from 2008 to 2010. The goals of that subcommittee continue to be the education of individuals and professionals across the state of Pennsylvania about the Collaborative process so that it is available as a choice to all clients.

In June, 2005, my colleague Diane Hitzemann and I organized an introductory Collaborative training for 24 individuals who came from across Pennsylvania to learn the process. The training was given by Stu Webb, a Minnesota attorney who created the concept in 1990, and Marion Korn, a collaborative professional and mediator from Toronto, Canada. From that core of individuals who attended the program, came the formation of Pennsylvania Collaborative Practice (PaCP), a practice group of attorneys whose mission it was, and continues to be, the practice and promotion of the collaborative option. Late in 2009, mental health practitioners and financial professionals joined the group to offer the support of those services to those attempting to restructure their families. Diane and I also belong to a central Pennsylvania practice group, Collaborative Professionals of Central Pennsylvania (CPCP).

The Collaborative Option

For many years mediation has been a recognized dispute resolution option for individuals who desired not to use a court system to resolve their differences. Under this option, the parties hire a neutral who works with them to evaluate their circumstances, consider their interests and brainstorm options to come to an agreement. In this setting, the mediator cannot advise either party regarding the impact of the law on whatever decisions they consider and they are usually advised to seek legal counsel to discuss whatever agreements they may be potentially considering.

In contrast, Collaborative practice offers many of the same interest-based negotiating techniques of mediation with the added benefit of individual legal representation.

Each party in conflict retains a trained collaborative attorney to assist them to resolve their differences using cooperative strategies instead of adversarial techniques. Attorneys govern the process in that they facilitate the parties in setting their highest goals for restructuring their families. They are encouraged to communicate with each other in a respectful and dignified fashion to arrive at solutions based on their interests and needs rather than on their positions. The parties govern the outcome and their solutions are not dictated by what a court would decide, but by what is equitable for their own circumstances.

Initially, parties and attorneys sign a Participation Agreement under which they agree to commit to the open disclosure and respectful communication of the process. The cornerstone of the process, which is included in the agreement, is the understanding that if the process breaks down, the collaborative attorneys must step out of the case and the parties must retain litigation counsel. Thus, the focus is on settlement and not on “going to court.” In addition, the parties agree to disclose all relevant information to each other and to the attorneys without the need for formal discovery.

Communications and negotiations take place among clients and counsel at four-way meetings. During these meetings, parties are asked to identify their broad goals during the process and their goals after the process is complete. The parties and lawyers then gather financial, emotional and relationship information in order to brainstorm options to resolve the conflicts based on each person’s interests and needs. They are encouraged to problem-solve within the framework of their unique family requirements. They reach interim and final agreements after open discussions and with the advice of their collaborative attorneys.

In some cases, just as in traditional law cases, financial and mental health professionals may be needed to provide financial and business counseling or to assist with emotional matters. The difference in a collaborative case is that the parties agree upon the expert, they agree as to how the expert is to be compensated, and the expert is retained as a neutral advisor to the parties. Under the terms of the participation agreement, the parties agree that the expert cannot be called to testify for either party if the case fails, nor can the expert be retained by either party to handle matters for him or her after the case is resolved.

In this process the clients are encouraged to communicate openly using positive language skills. Their input is essential to achieve an outcome that responds to each party’s goals. Using this open communication, the parties work toward results that are not a compromise but that are acceptable to each of them. Where litigation fosters a “win-lose” result, collaborative practice leaves parties in a “win-win” situation.

Because the collaborative process does not involve litigation, parties and lawyers are not governed by a court schedule. In the collaborative process there are no pleadings or petitions which often result in hearings, or court-ordered conferences. The only pleadings filed are those required for the final entry of a required divorce decree or custody order and these are filed after all agreements are reached and executed. This benefits the courts and the judges as well. More cases using the collaborative process, means fewer cases on the docket requiring court attention, freeing the courts and the judges to handle more complex cases.

The parties and counsel dictate their schedule. They schedule the four-way meetings at their convenience and they are scheduled as often as the parties require. Typically, I have found that cases reach agreement in 5 to 7 four-way meetings. However, it is up to the parties to control how often they meet, depending upon how much information needs to be gathered, what issues must be addressed and the emotional status of the parties, which may require longer periods of time between meetings.

Not only are the parties in a “win-win” situation using this process, but the attorneys are in a similar situation. With the focus on settlement and not on litigation, attorneys are free to use their lawyering skills such as analyzing data, problem solving, creating alternatives, negotiating agreements, mediation techniques, and tax and estate planning. The attorneys can advise clients about the status of the law; however, the law does not govern the parties’ agreements as long as the agreements do not violate the law. Lawyers work with clients in an atmosphere that encourages communication and a positive mind set rather than in one where parties are discouraged from speaking to each other.

Attorneys’ schedules are not dictated by court schedules so they have more time to spend on constructive counseling of clients toward meaningful agreements. Time spent preparing pleadings is limited to that required for the entry of a divorce decree. There are no Petitions for Special Relief or Contempt proceedings. There are no “hostile” adversaries at counsel table. One of the greatest benefits I have personally witnessed in collaborative cases is that lawyers and clients communicate openly and respectfully with everyone at the negotiating table. In cases I have handled which have already reached agreement, the parties have actually thanked both attorneys for their efforts and there have been hugs all around for clients and counsel. In addition, the agreements the clients make are “their” agreements based upon what is acceptable to them, which helps them feel satisfied with the result.

Not every case is appropriate for collaborative representation. The process is contraindicated where there is abuse, domestic violence, or extreme power imbalance between the parties. Collaborative practitioners are encouraged to carefully screen cases where the process may be inappropriate. While there will always be a place for litigation in disputed cases, the option of using the collaborative process as an alternative to litigation should be discussed with clients who are seeking legal representation.

The practice of collaborative law is spreading rapidly across the United States. From its beginnings in Minnesota in 1990 with Attorney Stuart Webb, who also needed to find a more reasonable way to practice family law, the practice is now used in almost all of the states. There are also practitioners throughout Europe and Australia, and the International Academy of Collaborative Professionals (IACP) now has over 10,000 collaborative professionals as members. Not only is the collaborative process being used in the family law arena, but it is also being applied in civil practice areas including personal injury, medical malpractice, probate and estates, and small business disputes.

When I prepare the final paperwork for the entry of a divorce decree in a collaborative case, or an agreement in a family business or estate dispute, I know I have provided a choice to clients and that choice has helped them during a very emotional time arrive at resolutions acceptable to their family without the destruction often associated with litigation. The clients are satisfied with their agreements, and the families are still families, restructured in a way acceptable to the parties and their children. As a bonus, I have great satisfaction working in my profession. I have found a better way.

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Linda S. Pellish is a partner with Pellish and Pellish, Pottsville, Pennsylvania, where she has been in practice since 1993. She is a trained collaborative attorney and certified mediator. She incorporates the collaborative practice of law and mediation into her general practice and, in doing so, offers choices of options to clients seeking resolutions of their legal disputes in family law settings and in civil practice.

Pellish served as a Co-chair of the Collaborative Law Subcommittee of the ADR Committee of the Pennsylvania Bar Association from 2008 to 2010. She is currently a member of Pennsylvania Collaborative Practice (PaCP), which she so-founded and co-chaired from 2006 to 2008, and is also a member of the Collaborative Professionals of Central Pennsylvania (CPCP). She is a member of The International Academy of Collaborative Professionals (IACP). Her website is www.pellishlaw.com. In addition, for more information about collaborative practice go to www.pacollaborativepractice.com, www.collaborativelawpa.com and www.collaborativepractice.com.

This article originally appeared in the March/April 2010 issue of Woman Magazine distributed in Columbia, Northumberland, Montour and Schuylkill Counties.

Questions? Call (570) 943-3016 or (570) 622-2338

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