“Runaway Train: Using Collaborative Practice to Derail High Conflict Court Cases”
High conflict court cases that never seem to end. We have all heard, experienced and lived them. How can we use collaborative practice (CP) to address and redress the problems of high conflict family court litigation? Is it possible? Why would anyone try?
Many families cannot see the light that is CP; and court litigation is all they know, all they have been exposed to or was the only option presented to them when they separated.
One of the basic tenets of CP is that both lawyers agree not to go to court. They are ‘all-in’ with respect to the process and if it fails or break down they contractually agree to step aside and let new (often litigation) lawyers take over.
Newly Separate Spouses, Court and CP
We almost always start every file by proposing the CP process. We write very open ended, friendly informative letters encouraging our client’s spouse to consider CP and hire a collaboratively trained lawyer. Sometimes the other spouse does not respond or decides to be self-represented (or spouse 2 – “S2”). In these circumstances a court proceeding is commenced and sometimes proceeds undefended. Usually at the very last step of the court process S2 then decides to retain counsel and respond to the proceeding. If S2’s new lawyer has CP training this is a great opportunity to stop the litigation train as it is leaving the station.
The parties have the option to withdraw from court proceedings and pursue CP. Or the parties can amend the standard CP agreement to reflect that the matter is already in court and place the existing court proceeding on hold until CP is pursued. Case management Judges have shown to be very accommodating with this approach and are often happy to get the case off their docket. The one advantage to this approach is that any final CP agreement can be incorporated into a court order quite easily by administrative motion (14B) with little time or expense. In addition, the court can also easily grant the divorce order.
Existing Court files and CP
What issues do you need to consider when existing court files are converted CP? The addition of neutrals is always good practice and we should encourage the client to always consider the benefits of a full CP team. Family neutrals are excellent at improving communication and addressing immediate and ongoing parenting issues. Financial neutrals can save time and expense and add credibility to the process of financial disclosure.
The lawyers and the clients then have to consider what do with the existing litigation: withdrawal of the court action, put the action on hold, agree not to go to court with their former litigation counsel, agree to go back to court with the same counsel if the CP process fails, or agree to go to court to deal with specifically defined issues such as third party disclosure, maintaining jurisdiction of the children and divorce for example. Depending on the option chosen, the CP agreement may need to be modified accordingly.
CP Files and Court
There are a number of questions that arise when court files convert to CP and when converted CP files end up back in litigation. A carefully crafted CP agreement can address many of these issues in advance but there are often unforeseen perils and pitfalls.
Stopping the runaway train of litigation using CP needs to be done with caution. The simple option is to withdrawal the proceeding, agree not to return to court and enter into a standard CP agreement.
Sometimes, however, when there is impasse on varied issues such as valuations, parenting times, school location or jurisdiction it can be helpful to have a case management judge provide guidance to the parties using a modified hybrid CP approach.
A hybrid approach involves modifying the CP agreement to permit the parties to revisit case management for issue-specific impasses, such as disclosure, valuations, third party participation (shareholders or directors for example), schooling, time-sharing and parenting issues. The CP agreement can also specify what information and disclosure could be used in later court proceedings if necessary.
Sections of the standard CP agreement that need to be addressed and possibly modified when stopping the train of runaway litigation include:
- Agreement not to go to court
- Agreement not to use information acquired in the CP process in court proceedings
- Agreement to choose a new lawyer
- Notice provisions and waiting periods
- And more
Purists will argue that modifying CP agreements and converting court actions or taking a hybrid approach to CP files (or small “c” collaboration) is not true to the cause and runs contrary to the principles of collaborative practice. However, there are many families caught up in the frenzy of court litigation and the system is being strained by the increasing number of family court matters and the increase in self-represented litigants. Perhaps we can use CP creatively to put the brakes on or even stop the runaway train of family court litigation and help ease an overburdened justice system and find closure for families caught up in the disconnect of litigation.