All too often, individuals coming to my office are surprised to learn that they have options regarding the process they will engage in to end their marriage. Information, I implore you, my colleagues in other areas of practice of law, to share with your family members and clients facing the end of their marriage.
In addition to traditional litigation, couples have the opportunity to engage in Mediation or the Collaborative Divorce Process as alternative approaches to litigation. No one process is the perfect fit for all families. Every family is unique, and time is well spent with a family law attorney who has been trained in alternative dispute resolution processes to explore all options and determine the process best suited for the needs of their family.
Cleveland is fortunate to have two vibrant organizations that espouse the obligation of family law attorneys to discuss alternative process options to litigation with their client-facing divorce as part of their ethical responsibility: “The Cleveland Academy of Collaborative Professionals” (www.collaborativepracticecleveland.com) and “The Center for Principled Family Advocacy” (www.famad.com). Both organizations of like-minded professionals provide the opportunity for their members to strengthen their knowledge, communication, and problem-solving skills in commitment to helping families through the transition of restructuring their families. Couples facing the end of their marriage should undoubtedly spend time educating themselves on process options. I would also strongly encourage spending at least one hour with a family law attorney trained in alternative dispute processes to provide an overview of all process options and explain the benefits and limitations of each process.
Universally, the end of a relationship is a human experience best addressed by a humanistic process to resolve conflicts between a separating couple. When a relationship is expected to last, people form complex contracts and affiliations during their union. Not surprisingly, when a relationship ends, there are many complicated legal disputes and challenging emotional conflicts to address, including but not limited to, in most cases, a home, investments, pensions, business interests, and most importantly, the best interest of their children.
Couples are primarily concerned about the impact that ending their marriage will have on their children and their financial security moving forward. Most families seek a private, respectful process where values and interests can be shared and where they can obtain the information they need to make informed durable agreements that are personalized to the needs of their unique family. The couples are looking to preserve important relations and develop a roadmap for a future of peace. Risk-averse couples are interested in learning more about their opportunity to take control of their choices.
There is often confusion between working collaboratively with their spouse and counsel and working in a structured Collaborative Process. The Ohio Collaborative Law statute was passed in Ohio in December 2012, recognizing the Collaborative Process as a constructive, viable alternative for couples facing divorce. The statute defines the essential characteristics of a Collaborative Process.
Collaborative practice is a client-focused out-of-Court resolution process where the collaborative lawyers, coaches, financial neutrals, and, if necessary, child advocates all work together with the goal of consensus for the benefit of the family.
In the Collaborative Process, the couple and the professionals sign a contract at the onset of the process that provides for voluntary disclosure of all relevant information and disqualifies the professionals from engaging in any future litigation in the event the parties are unable to reach the necessary agreements to dissolve their marriage. This powerful commitment clause provides a safe space for all to engage in a highly structured problem-solving process.
In the Collaborative Process, parties agree to engage in face-to-face meetings using constructive dialogue to brainstorm options after voluntarily exchanging all relevant information with no exception, eliminating the cost and time to subpoena documentation/information. Collaborative counsel educates the clients on issues of law throughout the process while encouraging the brainstorming of creative resolutions to satisfy the interests identified by the clients at the first Collaborative team meeting.
During the Collaborative Process, all professionals demonstrate respectful behavior in every communication with the couple. The couple is educated on the benefits of using non-judgemental language and “I” statements and is encouraged to practice communicating in this manner throughout the process. The couple is also introduced to active listening and a practical problem-solving method that is also utilized in reaching creative, durable agreements during the Collaborative process. These are skills the couple will rely upon to address unforeseen life circumstances as they continue to co-parent post-dissolution. The problem-solving method teaches the parties to succinctly identify each issue, requires them to obtain all relevant information, and then begin to brainstorm options for resolution. Evaluation and creative problem solving only commence after creating an exhaustive list of possible options. The final resolution is often a combination of options fine-tuned to address the needs of the children that is workable for both parents.
In essence, the Collaborative Process is a client-focused out-of-court resolution process where the professionals are helping the couple to obtain the information they need to make informed durable decisions that will allow them to uncouple from their marriage with dignity.
This interest-based process takes its foundation from William Ury and Robert Fisher’s work in the Harvard Negotiation Project. An often-used illustration of the basic principles of interest-based negotiation is the example of the orange. In a divorcing family, the orange represents the marital estate. The primary observation is that if the orange was precisely divided between the clients, each receiving 50% of the orange, both clients leave the table satisfied, yet, the observation is that both Husband and Wife are gravely disappointed with the equal division. If asked what was important to Husband or Wife about the orange, one would learn that the Wife’s interest in the orange was for the pulp for juice and the Husband’s interest was the rind for potpourri. This illustration demonstrates the significant impact of identifying the interests of each of the clients in creating a win-win resolution and a life-changing outcome for the family.
During the pandemic, when many families faced acute emotional, financial, legal, and practical issues, several collaborative professionals* in the Cleveland community invested in the future of their clients by engaging in ongoing training and obtained a license to utilize resources developed by Collaborative Practitioner, Mediator, and Innovator Jacinta Gallant. Jacinta developed comprehensive workbooks and value flashcards to help provide mediation and collaborative clients identify their interests, values, individual communication style, and conflict styles to effectively prepare them for efficient and productive meetings with their Collaborative counsel or mediator.
The workbooks are self-guided so as to allow each client to work at his/her own pace in a stress-free environment in preparation for each meeting. The workbooks provide a common discussion platform allowing attorneys and mediators to have richer and more efficient conversations with their clients because of the preparation. This preparation also allows attorneys and mediators to understand the underlying essence of the issues that manifest in conflict. In Collaborative meetings, the preparation makes the difficult conversations less personal as they gain self-awareness and begin to appreciate the value and interests of their spouse, allowing for a reality check of angry attitudes.
Once they understand their differences, and hopefully, each other’s strengths, they begin to develop a plan for their future that is workable for both spouses and their family.
Jacinta has developed three specific workbooks available to clients. The first workbook is entitled “In Two Homes.” This workbook is for parents who are raising minor children. “Our Family in a Few Homes” helps couples who are separating when their children are now adults helping them navigate decisions that will impact their relationships going forward through special life events and engagement with grandchildren. The third workbook, “Planning Our Lives Together,” is for couples planning for marriage and a productive negotiation of a prenuptial agreement that allows for a positive start to their marriage.
The workbooks also provide Ohio legal information that allows couples to identify questions and concerns when brainstorming options. Checklists provide guidance to highlight common issues and touch upon the many pieces of information needed in the process. The work done in preparation for Collaborative meetings provides clients with a sense of composure, reducing or eliminating impulsive destructive behavior, allowing them to work through issues using their cognitive brain to develop creative and durable agreements.
Awareness of alternative process options to litigation has had a profound positive impact on families facing the end of their marriage in Ohio. Couples must understand that they have a choice concerning the process they will use to end their marriage, a choice that will impact the future of their happiness and family relationships.
Jonetta J. Kapusta-Dorogi is an Ohio State Bar Association Family Relations Law Certified Specialist.She has been designated as a Super Lawyer. Jonetta has been practicing family law for 29 years as an attorney, collaborative lawyer, mediator, guardian ad litem, and parent coordinator. She is the principal of the firm Jonetta J. Kapusta-Dorogi, LLC. Jonetta is the President of the Cleveland Academy of Collaborative Professionals and Past President of the Center for Principled Family Advocacy. She currently co-chairs the parent coordination, practice group in the Center for Principled Family Advocacy. Jonetta is an active member of the International Academy of Collaborative Practitioners and the former chair of the CMBA Family Law Section. She has been a CMBA member since 1992.