Attorneys here practicing in what they describe as an emerging legal niche called collaborative law say that new field of law saves clients time and money and results in settlements that each party is more able to maintain over time.


So far, collaborative law has been used here primarily in divorce cases, but attorneys say they see potential for the methodology to be used in other legal disputes, including those involving probate or trust cases, and medical malpractice.


Its a real paradigm shift, to get out of the mindset of winning at all costs, says Spokane attorney Glenn Tanner, who three years ago helped launch the Spokane County Collaborative Professionals, a nonprofit professional organization formed to promote the practice.


Agreeing to use a collaborative process for a divorce case is much more than the parties saying they will cooperate, Tanner says.


Cost is a factor. Tanner says that though each case is different, a collaborative case can cost about half as much as a conventional litigated divorce, because many expensive and time-consuming procedural steps are eliminated, and both parties share information.


In a collaborative law case, the parties agree in a written contract not to take the case to court, but rather to negotiate the terms of the divorce in a series of four-way meetings with both attorneys and both clients, he says. The attorneys on both sides work closely together throughout the case.


The collaborative contract stipulates that each party will share freely any information or documentation requested by the other and that both parties will work with other professionals they hire together to resolve issues that arise during the process. Among those professionals might be mental health counselors, mediators, financial experts, and child therapists.


The collaborative meetings are confidential, and what is said in them mostly can be kept out of the public record, which wouldnt be possible if a case were litigated, Tanner says. If the clients later decide to go to court, the collaborative contract requires both attorneys to withdraw from the case. The work from the collaborative sessions cant be used in court, so the clients have to get new lawyers and begin the case from scratch, he says.


Tanner says the idea of avoiding a court battle, and also of avoiding the time and money required to get new attorneys and start the case over, motivates clients to see the collaborative process through, and so few clients drop out and seek litigation.


Dena Allen, a Spokane attorney who has been participating in collaborative cases for about a year here, says the process allows each client to feel that they had some control over the outcome.


When you go to trial, if the judge has done his job right nobody walks out happy, Allen says.


She adds that while even with a collaborative process nobody is happy about a divorce, the parties feel they have minimized the time, expense, and emotional cost of a trial.


How it works


In the collaborative process, the attorneys set the tone at the first meeting, having clients sign a contract and establishing ground rules. The group meets at a round table, often in a home or away from the usual trappings of a legal setting. Tanner says clients often participate by bringing snacks to the gathering, and the attorneys involved try to be sensitive to anything that can affect how people feel about the process, down to the art on the walls. Each meeting has an agenda and lasts about two hours.


One example of how the process differs from a litigated divorce would be in a case where one of the clients has an alcohol problem.


In collaborative law, that client would be encouraged to admit the problem, acknowledge that getting treatment is whats best for the children, and to get a treatment plan in place. In a traditional legal setting, the client would tend to see the most legal benefit by denying any alcohol problem, Tanner says. He adds that the client also would be less likely to follow through on a treatment plan ordered by a judge than if he or she arrives at a decision through the collaborative process to go onto a treatment plan.


In traditional litigation, there also is a rigid calendar laid out with deadlines and hearing dates, and each phase of the divorce, from discovery to filing witness lists triggers more expense, Allen says.


Not necessarily easy


Just because everyone agrees to go through the process collaboratively and has the best intentions to take the high ground doesnt mean its easy, Tanner says. He says the usual difficult issues involved in many divorces dont just disappear in the collaborative process.


Often, what people really want is to ask, Why did you have the affair? he says. Theres some reason the people are getting divorced.


Spokane attorney John Burke, one of the founding members of the Spokane County Collaborative Professionals, along with Tanner and Spokane attorney Karen Vache, says he was drawn to the field when he first heard about it several years ago after seeing for years how the process of divorce is so traumatic for people.


Ive seen some clients who come in to the divorce process with differences, but they are functional, they can communicate on care of children, but because of the adversarial nature of divorce its not uncommon for them to be not on speaking terms by the time the divorce is done, Burke says. Its sad that litigation results in that type of degradation of a family relationship, because they will have to continue to have a relationship.


He says he had anticipated that most of his collaborative law cases would involve people with children, but many of the couples who seek his services as a collaborative attorney are empty-nesters. He says that because they have a long history together and still care for one another, they dont want to hurt each other, want to protect their interests, but still care about the other person.


In one case, after we were done and it was all finished, the divorcing parties hugged each other, Burke says.


Vache, who has a masters degree in psychology as well as a law degree, says clients who choose the collaborative process tend to be those who are able to handle it and are emotionally stable.


We arent here to resolve mental-health issues, but we dont want to throw fuel on that fire, Vache says. She has served as a communication facilitator in one of the collaborative cases here, because its still difficult to find professionals who have the training to work in the relatively new field, she says.


Helen Sarver, a certified divorce financial analyst who has gone through training in the collaborative process and has participated in several cases, says her role is to ensure that everyone understands the financial picture and the potential ramifications of different options.


Many times, its just simply counseling an individual or couple about how their household is going to change because resources have to be spread across two households, Sarver says.


She says that not every type of allied professional is needed in each case, but theres an additional money- and time-saving benefit in not having to hire dueling financial or child experts to appear in court. She says sharing information freely saves clients money and helps everyone feel like they had a fair shake.


What adds so much time in a traditional case is that everything is like a game of telephone. Information has to be passed on from one client to an attorney to another attorney. It can be very costly in time, Sarver says.


In a collaborative case, financial matters can be resolved in four or five hours if the finances arent overly complex, she says. In collaborative cases, Sarver works with both clients, either together or individually, depending on their needs, she says.


There may be one that needs more help, for example, in building a new budget or understanding some of the decisions they have to make, Sarver says.


The future of collaborative law


In Spokane, Sarver is one of few allied professionals participating in collaborative cases thus far, Burke says. He expects that number to grow, but says attracting such professionals to the field is taking longer than he and his colleagues originally anticipated, because of the additional training required.


He says, however, that the field is growing here, and he expects it may become a track of sorts within the family law docket of the court system. Already, in Washingtons Thurston County, cases that are being handled collaboratively are handled by the court system differently, he says.


Though rules can keep the cases from being tied to a rigid court calendar, most often collaborative cases are completed and ready for final filing before Washington states mandatory 90-day cooling-off period for divorces is up, Burke says. He says the practice also is gaining traction with the Washington State Bar Association, from which the Spokane County Collaborative Professionals got a grant to hold a training session here last fall. Burke expects it just to continue to expand here.


If youd asked attorneys here a year ago what they thought about collaborative law, the vast majority wouldnt have known what it was, he says. Id say a substantial amount now would have heard of it and at least have a general idea about what it is.


Contact Jeanne Gustafson at (509) 344-1264 or via e-mail at jeanneg@spokanejournal.com.