Collaborative Divorce Law Blog

Monday, September 30, 2013

NJ Supreme Court Rules Decisively on Mediation

Mediators who don’t keep up with important legal developments risk doing disservice to their clients. On August 15, 2013, the NJ Supreme Court published an opinion that provides important guidance for both lawyers who provide mediation services and clients who select mediation for dispute resolution. Click here to read more.

Practice Pointer

An experienced mediator will always spend time at the outset establishing clients' expectations and explaining to parties for whom mediation is being conducted, that aside from the practical reasons to fully resolve all issues during a mediation, once the mediation is "over", it will be difficult to obtain court review to decide any open questions that may not be identified until after the mediation is completed. Unlike arbitration, in mediation, the NJ Supreme Court has made it clear that the courts are not intended as a forum for further clarification or modification of a mediation result, once that mediation has been completed. Clearly, this decision places greater responsibility on the mediator, but it also creates strong incentives for the parties to be comfortable with candor and openness, knowing that their trust will not be betrayed, to reach an agreement on all open issues, an outcome that is certainly more efficient, less time consuming, and less expensive for the participants.

Friday, July 12, 2013

Screening Participants for Collaborative Divorce

What happens in collaborative law requires rationality and emotional stability. I don’t think that participants who suffer from extreme psychiatric impairment, active substance abuse, etc. should be invited to participate in the process. These individuals may benefit from being shielded and spoken for by a legal representative. I would add to the screening criteria those with extremely unrealistic expectations, paranoid tendencies and trouble controlling angry impulses. I would enjoy studying the screening process with an eye toward including broader categories of participants.


Friday, March 1, 2013

Group Dynamics in the Collaborative Divorce Process

The problem solving that goes on in Collaborative Divorce Law can involve groups of two, four, five, six or more participants. Issues of how the group works are very different from those that can drop up in the traditional one-to-one relationship (attorney-client).

One difference is a phenomenon that some mental health workers refer to as “triangulation”. The key element in triangulation is an alliance among two or more participants. The At one level, the unspoken idea is that a participant enlists another participant in order to establish an advantage in the process. If it were stated, the unstated invitation would be “If you help me, I will like you”. The word help could just as well be “protect”, “nurture” “agree with” etc. These unstated and unsolicited invitations can occur very early in the process, even when an initial appointment is being arranged or driving instructions are being given.

Here is a very concrete example of something that tends to crop up in group therapy. As the group is leaving the room, one participant hangs back and wants to ask a question or clarify something. A good response to this invitation is to redirect the participant back into the group, “why not save the question and bring it up in the group next time”. This tactic might extinguish the invitation or, in the case of a genuine question, the participant may ask the question during the next group meeting. The same would apply in responding to such invitations during the collaborative group session.

One of the prime reasons for managing this situation is that the triangle is designed to help the participant avoid having to express feelings directly to another participant in the group. Perhaps this tactic is necessary at the time but after one or two sessions, the issue must be dealt with otherwise the problem solving will be delayed and possibly destroyed. The participant will have ample time to speak with his lawyer in individuals.

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