Collaborative Process divorces can involve experts from various fields in an efficient and unbiased way.
The use of experts can give divorcing individuals a sense of security that they are making the right decisions to reach the best possible agreement. Some people worry that their case is too complicated to be handled collaboratively. The Collaborative Process is actually a great alternative for divorces with highly complicated financial situations. The Collaborative Process attorneys will talk to their clients individually and work together to create a process that will help the parties reach a coherent resolution. When expert advice is needed, the Collaborative attorney can help a client retain and work with an expert.
Information Gathering is an Important Step in the Collaborative Process
The Collaborative Process is not about blind compromise. Parties in a Collaborative divorce are NOT expected to just settle and walk away with half of what they wanted. Rather, the Collaborative Process is about finding creative solutions that actually work. In order to find creative solutions and come up with the best possible outcomes, all of the parties need to be fully informed. To participate in the Collaborative Process, there is a requirement that everyone must be forthcoming with all known information. At times, though, information needed is even unknown to the divorcing individuals themselves. In a recent case I worked on, the people getting divorced owned two residential properties, one rental property, and the husband owned his own business. Experts were needed to determine the value of the three properties and the business. The divorcing couple needed numbers they could rely on to make financial and legal decisions. The attorneys also needed all the information before they could give valid advice to the clients.
The Use of Outside Experts
The divorcing couple and their attorneys worked together to find and retain the right experts for the particular situation. They used the experts in a collaborative way to save time and money and to get the right results. Two different real estate appraisers were hired by the parties: one who specialized in commercial property for the rental building, and one who specialized in residential real estate for the two homes. The parties and their attorneys all suggested names and looked into the appraisers’ backgrounds and prices before mutually selecting individuals to use. The attorneys then jointly called the appraisers and presented the situation in a neutral manner so that the appraisers would not be biased by any suggestions from just one attorney. (Sometimes in the Collaborative Process, the attorneys work together to draft an email to send to an expert explaining clearly that the expert will work for the overall process and not just for one party and to explain clearly what the scope of the work will entail.) The attorneys explained to the appraisers that the couple was jointly hiring them. The appraisers, therefore, understood that they worked for the process in general and not for one particular client. Their only incentive was to do their best work.
The Use of Collaborative Law Institute of Illinois Financial Neutrals as Experts
For the business valuation, the attorneys and clients chose one of the Collaborative Law Institute of Illinois’ Financial Neutrals. Financial Neutrals are Certified Divorce Financial Planners or Certified Divorce Financial Analysts and are sometimes brought in to be members of the Collaborative Process team. They can also be a great source of experts to be brought in for specific evaluations, on a strictly as needed basis. In our case, the CLII Financial Neutral was hired solely as an outside expert to do the appraisal of the husband’s business. Because she was a CLII Fellow, however, she completely understood the nature of the case and the fact that she was being hired for her neutrality and expertise. She understood that she could speak freely with everyone, would create a report, and would be available as needed for follow up. Rather than an expensive traditional discovery process with a deposition of the expert, she came to one of the Collaborative Process meetings with the parties and their attorneys to discuss her report and answer questions. Her expertise helped to give the parties the information they needed about the husband’s business. She had no incentive to shade her results one way or the other, but was truly free to use her expertise. Her understanding of the Collaborative Process and her full understanding of what it meant to be neutral helped de-escalate the conflict in the case and helped the parties reach an agreement efficiently.
Helping Clients Select Experts is a Rewarding Aspect of the Collaborative Process
For thirteen years I was a traditional litigator before I started my own practice devoted to mediation and Collaborative Process cases. As a litigator, I spent a lot of time trying to discredit the other side’s experts, limiting the scope of his or her expertise, and finding another expert who would say something different. I saw a lot of time and money spent on the process of trying to obtain or hide information. This back and forth simply prolongs a case and frustrates finding a resolution. In my own practice, with a focus on reaching agreements through mediation and the Collaborative Process, my passion for advocating for my clients is refocused into helping everyone in the case find the right expert, get the information timely, and use it appropriately to make an informed decision. Selecting a neutral expert based on area of expertise, availability, and pricing is one of the best ways to advocate for a client who needs to gather information to make an informed decision in a divorce case. Once people are fully informed with accurate information, it is easier to be productive and reach an agreement. It’s a privilege to be able to work with motivated clients and talented experts in a productive way.
Rachel Moore is an attorney, mediator, and CLII Fellow. She helps people get divorced by reaching the best possible agreements in the best possible way. She has a private practice in Northfield, and appointments are also available in the Chicago Loop and Highland Park.