By: Robert J. Shanahan, Jr. Esq.
During this month, I have joined a team of presenters in teaching a four-session course on Collaborative Law, sponsored by the Hunterdon County Bar Association. The course presents basic training for lawyers and other professionals who wish to practice “collaboratively” in handling disputes. Collaborative Law has been very successful in the divorce arena, so much so, that the New Jersey Legislature recently passed a law recognizing the collaborative practice in divorce. For several years, I have been advocating its use in all family matters, including elder law and probate. The reason is simple: all matters of litigation involving family members, whether divorce, guardianship/Power of Attorney or Last Will issues, will have a severe, negative impact on the family. It is better that the issue be resolved in mediation. Not only is it quicker and less expensive, but it allows the family to maintain control of the issue and its resolution, and it preserves the family’s ability to resolve future issues accordingly.
Collaborative Law Defined
Collaborative Law is a form of mediation. Rather than sit with a mediator, who may or may not have the skills necessary to resolve issues, Collaborative professionals will bring in “neutrals”, professionals who can assist the parties in moving ahead. For example, if the allegation is that one sibling stole money from a parent while acting under a Power of Attorney, a neutral accountant can be brought in to review the books and advise. If there is disagreement as to what type of care Mom or Dad needs, a geriatric care manager can review the matter and discuss the possibilities with the family. The same can be done with financial advisors, attorneys, social workers and the like. All of these professionals would be collaboratively trained and would remain neutral throughout the process. Above all, each party would agree not to file any law suits while the process is undertaken, and any lawyers involved will not be retained by any of the parties to bring litigation.
Being Collaborative Is Not Always Appropriate
Not all situations are appropriate for the Collaborative process. Sometimes, the parties cannot agree, as in the case of one sibling who believes that if he could just get his side of the story before a judge, the judge will side with him and make the others do what he wishes. Having been in many of these cases before various judges, I have not found one such magistrate who is so persuaded by one of the siblings as to find for him, alone. However, such a person deserves his day in court, as they say. I just hope they can afford it, as it is usually the attorneys who make out well in such disputes.
I am a Collaboratively trained mediator and I would love an opportunity to discuss this method of dispute resolution with you. If you have a dispute amongst the members of your family involving elder care issues, or probate, please give us a call.
THE INFORMATION CONTAINED HEREIN IS MERELY AN EDUCATIONAL SERVICE TO PROVIDE BASIC, GENERAL INFORMATION AND IS NOT LEGAL ADVICE OF ANY SORT. FURTHER, BY EXPLORING THIS INFORMATION, YOU UNDERSTAND AND AGREE THAT NO ATTORNEY-CLIENT RELATIONSHIP IS BEING FORMED. IF YOU NEED LEGAL COUNSEL, PLEASE CONTACT OUR OFFICE OR AN ATTORNEY OF YOUR CHOOSING, OR CALL YOUR LOCAL COUNTY BAR ASSOCIATION FOR A REFERRAL.