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Collaborative divorce

Even as their 30-year marriage lurched toward dissolution,

Bonnie Cheney and her husband, the Rev. Peter Cheney, believed it deserved

better treatment than likely would be meted out in your standard divorce court.

"Thirty years was more than half my life," said Cheney, 63, a once-divorced

mother of four young children when she and the Episcopal priest wed. "They

became 'our' children and he, their father. We held that in high regard. Our

intention was not to destroy each other or create any more harm for our family."

Wanting to split up more amicably, the Cheneys landed in late 2003 in the

offices of two attorneys from the New York Collaborative Law Group,

practitioners who, far from positioning themselves and their clients as

opponents from the outset, serve varyingly as conciliator, legal counsel and

attentive ear.

Formed four years ago and so far enlisting 65 lawyers from New York City,

Nassau and Westchester counties, the group is one point in a growing national

network of lawyers, judges, family therapists and financial planners trying to

minimize the time, money and animosity expended on divorce.

In their case, by the time the divorce was final in February 2005, the

Cheneys had spent a total of $20,000 - some families have been bankrupted by

litigated divorce - but measure their comparative savings in more than dollars.

"When the discussion occasionally got heated, the attorneys would know when

to help us step back or when to push us forward," Bonnie Cheney says,

recalling the four-way negotiations among herself, her lawyer, her spouse and

his lawyer. "You sign a contract," says her ex-husband, 57, "all four

participants ... that you will adhere to certain ethical procedures and a

process that will be open. That defuses some of the fears and helps you develop

some trust."

How it works

Fundamentally, collaborative clients forgo settling their dispute in front

of a judge, choosing, rather, to enlist a set of collaborative lawyers and,

sometimes, financial planners and therapists who help with the economics and

emotions that can complicate this difficult life passage. The network reflects,

collaborators say, a major shift in how couples are able to part and how their

lawyers support a process largely directed by the divorcing parties themselves.

"This takes a whole set of skills that are different from what's in the

usual toolbox," says White Plains attorney Katherine Miller, a divorce lawyer

since 1988 and collaborative practitioner since 2002. "It requires listening to

people and trying to figure out what is important to them, instead of what is

important to the lawyer."

"This is," says Charles McEvily, who last year began handling collaborative

cases from his 32-year-old Garden City firm, "a kinder, gentler, more humane

approach to resolving conflicts that confront 50 percent of marriages."

As a first step toward collaborative divorce, a contract on negotiating

etiquette and procedure is signed. Then assorted issues are laid out. Hurt

feelings. Betrayals. Financial expectations. Dreams of a future.

It took the Cheneys - instead of heading straight to a matrimonial lawyer,

they initially tried to salvage their marriage through a mediator - four long,

four-way meetings to decide that Peter Cheney, director of the Manhattan-based

National Association of Episcopal Schools, would continue his spousal support

of longtime homemaker Bonnie, an organizer of Buddhist events, including the

Dalai Lama's October tour of Tucson, Ariz.

She moved there after the divorce was final. (Her husband is among her

invited guests to the Dalai Lama's Arizona stop.) By mutual agreement, he kept,

among other things, a house they shared in the East Village. She got family

photographs, heirloom rugs and books for the already outfitted home they

previously owned out West.

"In competitive negotiations," says Brooklyn attorney Rachel Green of

Resolutions, her one-woman collaborative practice, "you look at it as a

zero-sum gain: 'The more I get, the less you get.' In interest-based,

cooperative negotiations, what you try to do is expand the pie before you carve

it up.

As one example, a recent collaborative agreement that Green helped draw up

required a stay-at-home ex-wife to stop transporting her child to private

school daily in a taxi, an expensive proposition previously underwritten by her

now ex-husband. Also, the ex-husband agreed to cover all child-related

expenses only if he was kept abreast of the goings-on in that child's life,

whether the choice of day camps or the date of a PTA open house.

It's still a breakup

But even collaborative law can get tripped up.

One of Green's clients, a woman who works for a comparatively small salary

and pension at a nonprofit, is seeking half her husband's $600,000 pension - a

move he is resisting. "His wife's family is fairly well-to-do" and, upon her

mother's death, she would receive a sizable inheritance, Green says. "But she

argues that her inheritance should have nothing to do with it. ... One idea is

for her to give back the 50 percent when she gets that inheritance." That

matter is yet to be settled.

With collaborative lawyering demanding that lawyers buck legal convention,

the attorneys themselves also are in a sort of transition. Recently in a

conference room of Berkman, Bottger & Rodd, the Fifth Avenue offices of Barry

Berkman, one of four co-founders of the New York group, seven brown-bagging

lawyers gathered for a monthly brainstorm over the trickier aspects of their

evolving practices.

[CORRECTION: Marc Fleisher is a collaborative divorce lawyer in Manhattan.

His last name was misspelled in a Monday article in Part 2 on collaborative

divorce. Pg. A17 ALL 8/19/05] "If anybody has anything they want to bring

up.... " Manhattan attorney Marc Fleischer, another co-founder says,

jump-starting the hour-long session that Thursday.

Garden City lawyer Jill Bauer mentioned a three-day training session in

January at the Nassau Bar Association for prospective collaborative lawyers,

and a complement of mental health workers and financial planners. (In

September, collaborative training is slated in Manhattan.) Elayne Greenberg, of

Great Neck, noted an upcoming conference of the Parenting Coordination

Association of New York, which trains therapists and others in family mediation

and, she says, might be a resource for collaborative lawyers.

Troubled over an admitted misstep in a recent negotiation among one of his

clients, the client's spouse and the spouse's lawyer, Fleischer, who also

studied family therapy at Manhattan's Ackerman Institute for the Family, seeks

the group's advice.

[CORRECTION: Marc Fleisher is a collaborative divorce lawyer in Manhattan.

His last name was misspelled in a Monday article in Part 2 on collaborative

divorce. Pg. A17 ALL 8/19/05] "The other attorney," Fleischer says, "really

took on the perspective of his or her client and did so with characteristic

eloquence, it seemed to me, in the great tradition of advocacy. ... There was a

lot about equity and a lot about the anger and disapproval of his or her

client. It left me feeling I had to respond in kind; I could not leave my

client unprotected."

Berkman: "Why?"

Fleischer "It left him unprotected."

Berkman: "So you were equally articulate with your advocacy?"

[CORRECTION: Marc Fleisher is a collaborative divorce lawyer in Manhattan.

His last name was misspelled in a Monday article in Part 2 on collaborative

divorce. Pg. A17 ALL 8/19/05] Fleischer: "In effect, I said, 'Let's call a

truce on this' - after I responded."

Bauer: "So after you got the last word, you said, 'I don't want to hear any

more of this.'"

The seven laughed at Bauer's playful mockery, then began pondering how not

to revert to their law school training. "How do we stop ourselves from doing

what's natural for all lawyers?" Berkman begins, "and that is to carry our

client's point-of-view, including their emotional point-of-view, which is to

demonize?"

Collaborative law started in California around 1990 and branched out from

there. As one measure of the movement, the California-based International

Academy of Collaborative Professionals, an organization comprised mainly of

lawyers and judges but also money managers and family counselors who help

clients deal with personal concerns apart from signing off on divorce papers,

counted 75 members in 2001 and numbers 1,450 currently, with practitioners in

38 of the 50 states and eight of Canada's 10 provinces.

"I've represented people in litigation where the litigation bankrupted

them, where their kids' college educations were blown away. To me,

collaborative law is the only sane way to go," says Houston attorney Norma

Levine Trusch, outgoing academy president and a 40-year veteran of divorce law.

The most intractable cases, however, she and others admit, must be

litigated, though they hope that would occur only after a less combative

process proved futile.

From judge to advocate

Backing collaborative law as a first effort is Ross Foote. In July 2004, he

stepped down after 13 years as matrimonial judge in Alexandria, La., to

advocate full-time for collaborative divorce as a standard in a field

bankrolled largely by its proficiency in pitting spouses against each other.

"To allow a family to be destroyed to make a fee is an unethical practice

of the law," says Foote, a former board member of the collaborative

professionals academy, whose advocacy work is unpaid and headquartered at his

wife's law firm for now. "Instead of this being a legal issue with terrible

family outcomes," Foote added, "this should be a family issue with a legal

result."

That is what one Merrick physician - he asked not to be named, heeding his

wife's request for privacy - sought when he agreed to a collaborative divorce

whose terms have been drafted but await, as a formality, a judge's signature of

approval.

"When we got right down to it, all we wanted was to finish this so we could

be good parents to our children," says the father of three who, with his wife,

will legally have joint custody of the kids. "We wanted to get on with our

lives and have good interaction in the future."

RESOLUTIONS

Forgoing a conventional divorce for a collaborative one requires parting

spouses to be willing to compromise and to consider that uncoupling need not

have a winner-takes-all ending.

While the most emotionally and financially intractable divorces seem

destined for trial, litigation is far from the only divorce option, say

collaborative lawyers and their clients.

Those most likely to succeed collaboratively:

Are determined - as collaborative divorce mandates - not to take their case

before judge or jury.

Submit, if need be, to counseling over emotional or money matters, or

mediation, as a precursor to negotiating a divorce settlement.

Understand that the other spouse is entitled to air his or her marital

complaints, which, even if not entirely valid in the listener's mind, hold

legitimacy for the complaining person.

Move beyond protesting to problem-solving, whether settling matters of

child custody and visitation or divvying up property obtained during the

marriage.

Want to limit the time and money spent divorcing.

- KATTI GRAY

SEEKING HELP

Clearinghouses on collaborative divorce include the New York Collaborative Law

Group, at www.collaborative lawny.com, and California-based International

Academy of Collaborative Professionals, at www.collaborative practice.com.

Their telephone numbers are 212-682-0888 and 415-897-2398, respectively.

- KATTI GRAY

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