Collaborative law is a process in which the parties to a divorce hire lawyers and other appropriate professionals trained in collaborative practice to negotiate a resolution of their divorce.  The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but they along with their lawyers and other team members agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.  The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers and team professionals), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution.  The process allows for other “nonparty participants” to be part of the process – financial professionals, divorce coaches, child specialists (collectively with the lawyers “the collaborative team”) – to help the parties address their individual needs and concerns, the needs of their children, and to shape the appropriate agreement to address those needs.  The process is privileged and confidential and the communications made during the process cannot be later introduced in a trial. 

We had a top notch training staff, including the women who literally wrote the book (“Collaborative Divorce” HarperCollins Publishers, 2006), Pauline H. Tesler, M.A., J.D., and Peggy Thompson, Ph.D.  Joining Pauline and Peggy was Lisa Schneider, CFP, CDFA – a long time regular member of their collaborative teams from the San Francisco Bay Area.  The three days we spent with our trainers were equal parts challenging and invigorating.  I hope I speak for the entire group when I say we walked away with no doubts that the collaborative model is the healthiest, most equitable, and one of the most cost effective ways a family can traverse the minefield of divorce. 

There are over 20,000 trained collaborative professionals practicing in at least 19 countries worldwide.  This model has been adopted, approved and promoted by numerous judges, state appellate court justices and bar associations around the U.S.  Here in Alabama, Robert E. Lusk, Jr., assistant General Counsel to the Alabama State Bar Association, has confirmed for us that collaborative law is alive and well in Alabama and in full compliance with the Rules of Professional Conduct (note to those lawyers who still want to question whether collaborative agreements are ethical – this should allay your concerns.  Please feel free to call the Bar if you have questions about the ethicality of this process).  Further, the National Conference of Commissioners on Uniform State Laws has promulgated the Uniform Collaborative Law Act, which has been proposed in the Alabama Legislature by Senator Cam Ward. 

The process just makes sense.  Lawyers are freed up from trying to wear every hat to focus on what they are trained to do best – address legal issues.  Divorce coaches and child specialists, who are trained mental health professionals, help the parties address the emotional and decision making needs and insure that the children have a well trained voice in the process that is all their own.  A neutral financial professional gathers the data related to assets, debts, expenses and the like, and presents a neutral picture of the marital estate so that everyone is working from the same – and most importantly accurate – picture of the family’s financial position.  That same neutral financial professional also helps everyone understand the financial implications of the decisions the parties are making under however many scenarios the parties want to look at.  The end result is an agreement that addresses the needs of the entire family that the parties themselves have created with the assistance of the proper professionals – and those professionals remain available to the family after the divorce as they transition into the next stages of life.   

Common questions come up when discussing collaborative law: How can a process involving all those professionals be cost effective?  Won’t the process take forever with all those professionals in the mix?  The answers are fairly easy.

 First, clients are not paying lawyers (typically the highest hourly rates on the “team”) to try to be financial professionals digesting and explaining the complexities of finances.  Nor are clients paying their lawyers’ hourly rates to address every anger or emotional issue that arises – and lawyers are inherently the wrong professionals to bring these types of concerns to anyway (we typically, although not always intentionally, end up throwing gasoline on the fire).  Further, clients are not asking lawyers to make their best guess at what is the proper role for each parent with their children after the divorce.   

Also, clients are not paying for multiple trips to the courthouse for their lawyers to attend hearings or try the case.  On any given day in Birmingham, there are approximately 2,500 divorce cases pending and those cases take on average anywhere from a year to eighteen months to reach trial.  Comparatively, the collaborative process will typically take a matter of a few months to reach resolution.  The biggest plus of collaborative law is that clients are not leaving the most important matters in their life – the involvement of each parent with their children and how post-divorce financial issues will be handled – to a well-intentioned complete stranger (the trial judge) who listens to a few hours of testimony and makes his or her best efforts to make those decisions for them.  The clients make fully informed decisions for themselves. 

The process takes less time than it takes to go to trial or settle your case on the courthouse steps, and the time that is spent is divided between various professionals at hourly rates that are appropriate to their professions.  The process is quicker and less expensive than litigation and nowhere near as destructive. 

Collaborative law promotes dignity and respect.  It is tailored to the family in question.  It is fair.  It is confidential.  It is transparent. It is cost effective. It is time effective.  It works.  I look forward to watching this model take hold in Alabama and am proud to call myself a collaborative professional. 

For more information on collaborative law, please check out the following sources: 

http://www.collaborativepractice.com/

http://www.birminghamcollaborative.com/

The bill, if passed and enacted, would require companies like Facebook and Google to explain how they collect personal information from users, how and when they share such information, and will make it more difficult for targeting internet users by advertisers. The bill would require consumer consent before information about a user could be collected.  The Federal Trade Commission, which would be in charge of enforcing the law if the bill is passed and enacted, had sought stronger restrictions and a “do not track” mechanism similar to the do not call registry.  Though no private lawsuits would be permitted under the law, the FTC could fine companies up to $3 million for violating the law. 

Senator McCain was quoted in today’s Washington Post as stating, “Consumers want to shop, browse and share information in an environment that is respectful of their personal information. Our legislation sets forth a framework for companies to create such an environment and allows businesses to continue to market and advertise to all consumers, including potential customers.” 

While consumer advocates would prefer even stronger measures, this bill is a good start to providing much needed protection of personal information in the fast changing worlds of internet commerce and social media.

The case was filed by families of both black and white students from rural counties.  The plaintiffs have argued that the current system, under which timber and farm lands are taxed at taxed well below fair market values, discriminates against rural areas and leaves schools in those poorer communities underfunded.  Lawyers defending the process argue that public school funds are fairly distributed and that the system gives communities the opportunity to put property tax increases in front of voters by referendum.  One area of agreement on both sides – Alabama’s property taxes are the lowest in the country. 

Politicians who were involved in the establishment of the current system, including former governor Albert Brewer, have testified regarding the interests that came into play in establishing the current property tax system.  Governor Brewer, who stated he would not have enacted the policy that was established had he been re-elected in 1970, testified that he never heard any politicians citing race as the grounds for establishing the property tax system. 

The trial, which is taking place in Birmingham this week, is expected to return to Huntsville and continue through next week.  If the plaintiffs prevail, they are asking the federal judge hearing the case to give the Alabama Legislature a one year window in which to develop a new property tax code.  More information on this lawsuit can be found on AL.com.

The Birmingham News and AL.com have been covering the pending budgetary woes facing the courts and numerous articles and opinion pieces have detailed the grim picture.  The Jefferson County Family Court will likely lose court referees who hear over 17,000 cases per year.  Bailiffs and security personnel will be cut.  Unlike in years past, the courts are not able to look to the County Commission for help – the County is struggling to avoid bankruptcy in light of the sewer debt debacle and the loss (again) of the occupational tax.  There is a likelihood of fewer weeks for jury trials and even discussions of closing the courthouses one day per week.  Back-ups in the criminal dockets will likely lead to more jail overcrowding.  People with civil lawsuits and divorce cases will have to wait even longer than normal for their cases to be reached if they cannot find ways to resolve them outside of the court system.   

The Birmingham News reported on Sunday, April 3, that the Jefferson County Commission is seeking limited home rule to allow it to enact tax increases and remove earmarks from current taxes to help meet funding shortfalls.  Under the Alabama Constitution, only the legislature can increase taxes.  So far, there has been no agreement from the County’s legislative delegation on how to help the County Commission move forward in fixing its funding problems.  This leaves the courts looking for new avenues of revenue – including the possibility of increased filing fees.  While these budgetary woes grow, the volume of cases our courts are handling continues to be staggering. 

The Alabama Administrative Office of Courts reported that last year in Jefferson County (Birmingham and Bessemer) the following NEW cases were filed: 

-          Circuit Court Criminal – 7,501

-          Circuit Court Civil – 9,681

-          District Court Criminal – 19,452

-          District Court Civil – 11,292

-          Small Claims – 16,369

-          Domestic Relations (Divorce Courts) 4,938 (3,838 new cases; 1,100 modifications)

-          Juvenile Cases – 5,599

-          Child support cases (Family Courts) – 5,221

This does not address matters that were already pending in the courts prior to these new filings.   

While volunteer mediation programs exist to help the small claims and divorce courts in Birmingham, these programs are limited and can only go so far to help with the backlog of cases in the County.  As the gridlock between the County Commission and the Alabama Legislature continues, the courts have begun announcing layoffs.  Difficult times require creative solutions – hopefully our elected officials will take the steps necessary to insure the safe and efficient operation of our courts.  In the meantime, the lawyers and parties in civil lawsuits and family law cases need to look for avenues other than trials to resolve their cases as early, fairly and efficiently as possible to avoid the delays this budget crisis will bring.   

Here in the Birmingham area, a similar program is being piloted in Bessemer.  With help from local lawyers, counselors, the Birmingham Volunteer Lawyer Program and the Alternative Dispute Resolution Section of the Birmingham Bar Association, mediators have been meeting with kids to help resolve disputes and prevent fights – and have been having success!  This program deserves wide community support and I hope it lays the foundation for similar programs in all of our area schools.  We can counter the culture of violence and build a strong foundation in our young people if we take the time to lead by example.

Elder care and estate division, while not new issues, have been garnering more coverage recently in the news and attention in the public eye.  This may be a result of our population aging, or that the baby-boom generation is now providing care for their parents who are living longer than generations before them.  Whatever the reason, issues of how to provide care for the elderly – and what effect that care provision may have on the division of assets in a parent or loved one’s estate – are giving rise to more disputes that, unfortunately for the families involved, often end up in court. 

A recent Wall Street Journal article profiled a family facing these questions.  The article by Anne Tergesen, “A Referee for Family Disputes,” (available for review on line at: http://online.wsj.com/article/SB10001424052748704124504576118051771121770.html) uses an example from a family in California who hired a mediator to help a 60 year old woman and her three siblings divide land owned by their 90 year old mother – land that had been in their family for many years.   Polly Osborne, the family member interviewed for the article, stated, “We went from not knowing what to do to agreeing on virtually everything or compromising happily.”  Ms. Osborne went on to note that she and her siblings were incorporating the agreement reached in mediation into their own estate planning. 

An article in The Buffalo News entitled “Mending Fences, With a Mediator,” authored by Emma Sapong and Sandra G. Boodman (available for review on line at: http://www.buffalonews.com/business/moneysmart/article333623.ece) demonstrates another situation.  The article tells the story of a family fighting in court over the division of their father’s estate.  One child had provided more “hands-on” care and took possession of many of the assets after the father’s passing.  Three other siblings felt that was unfair.  As the family was feuding and incurring expenses to fight amongst themselves, they turned to a mediator.  The mediator who helped them resolve the dispute shared this, “They got to express the hurt and they were addressed effectively and they understood where the other was coming from.  And by the last session, they focused on what was really important and honored their father by working through a resolution that was respectful and accommodating for all parties.”  And, the article pointed out, the family spent less than $2,000.00 on the mediation – making the process not only productive, but also cost effective. 

The key to these stories is that these families were able, with the assistance of a mediator, to preserve their relationships, save assets, and avoid courtroom drama that would have taken both a large financial and emotional toll on the families.  Other examples of disputes where a mediator can assist a family outside of the traditional divorce spectrum include: helping family members decide how to assist the elderly with managing their financial affairs; dividing up responsibility for the provision of personal care; and even issues surrounding how health care decisions should be made.  Mediation is very often the most inexpensive and productive solution facing families struggling with disputes that could otherwise tear the family apart. 

(This post can also be found at www.theagreetoagreeblog.blogspot.com)

Mr. Feinberg and his law firm were hired by BP to administer the claims fund established to compensate victims of the Deepwater Horizon oil spill.  According the the AP (http://www.usatoday.com/money/companies/regulation/2011-02-02-gulf-spill-feinberg_N.htm), his law firm was paid $850,000.00 per month by BP through January of this year, and discussions about his fees going forward are underway.  Throughout his administration of the claims fund, Mr. Feinberg has held out that he is completely independent from BP.  In reality, as Judge Barbier noted, Mr. Feinberg is serving in a “hybrid” role that is not truly independent. 

Judge Barbier went on to state, “Full disclosure and transparency can ensure that the reality of the operation of a third party will be consistent with any publicity concerning that matter.  Full disclosure can also give protection to the responsible party from possible future legal attacks on the validity of the evaluation, payment, and release of claims.” 

Lawyers quoted in an article in the New York Times (http://www.nytimes.com/2011/02/03/us/03feinberg.html) regarding Judge Barbier’s Order indicated that Mr. Feinberg’s prior claims of neutrality could give rise to challenges to the settlements he has reached.  Further arguments and briefing on issues surrounding the claims process are expected. 

A copy of Judge Barbier’s Order can be found at http://graphics8.nytimes.com/packages/pdf/national/Barbier-Feinberg.pdf

On January 17, 2011, the New York Times ran a front page article titled, “Lawsuit Loans Add New Risk for the Injured.”  The article, written by Binyamin Applebaum, profiled several cases where personal injury victims took out loans from Oasis and similar lenders, only to discover after the fact that the small “non-recourse” loans ate up most of their lawsuit settlements.  While the Alabama case was not discussed in this article, lawsuits from other states challenging these unscrupulous lending practices were discussed.  The lenders, in turn, have filed lawsuits seeking to prevent states from applying lending regulations to them because, in their estimation, they aren’t making a loan but instead are buying an interest in the underlying lawsuit.  Thus, under their argument, they do not fall within truth in lending requirements or interest rate caps.  The article also demonstrated the lobbying efforts being made by Oasis and its brethren to have exceptions carved out in various states so they can continue to take advantage of injured people while dodging regulatory or judicial scrutiny. 

In an interesting letter to the editor following this story, Darren McKinney, the Director of Communications for the American Tort Reform Association, stood up against Oasis and the “non-recourse” lenders.  His letter ran in the New York Times on January 22.  Mr. McKinney pointed out the historical ban on third parties investing in lawsuits, and chided legislators who were supporting these lenders.  As Mr. McKinney pointed out, not only are the injured people taken advantage of, but the practice of lawsuit lending could be seen as encouraging the filing of more lawsuits – something the American Tort Reform Association certainly opposes. 

With such a diverse group of interests opposing Oasis and its ilk, hopefully legislatures around the country will stand up and hold these lenders to the standards that apply to all other lenders.  I applaud those who are challenging the “non-recourse” lawsuit lending industry and hope the courts and legislatures will do the right thing and reign in this predatory practice.