© 2010 E. J. Kates
by Elizabeth J. Kates, Esq.
Although we most often hear of collaborative law being used for collaborative divorce and the resolution of other family law disputes, "collaborative law" encompasses, but is not synonymous with "collaborative divorce" or "collaborative family law". As a method of dispute resolution, collaborative law is broader than that, and it may be an ideal vehicle to consider when disputes arise in the areas of probate, trust administration, and estate planning.
As Texas practitioners Lawrence Maxwell and Sherrie Abney point out in a recent article , "Collaborative Law: The First Option for Resolving Probate Disputes" :
The collaborative process is a structured, voluntary, non-adversarial approach to resolving disputes, based upon cooperation between the parties, team work, full disclosure, honesty, integrity, respect, civility and parity of costs. The process is tailor made for resolving probate disputes which typically involve ongoing, personal relationships such as will contests, contested guardianships and claims of breach of fiduciary duty.
More and more lawyers have begun to recognize these truths. For example, in Santa Rosa, California, probate attorney William M. Andrews  indicates that he now considers using collaborative law because "there had to be a better, less costly way to resolve probate disputes. Probate disputes have many of the emotional dynamics present in family law, but with the added complications of tax issues and often have more people involved in the dispute."
In an article written jointly by Mr. Andrews and lawyer Barbara Stagg, "Resolve Family Disputes Without Litigation" , about the potential benefits of collaboratively resolving elder law issues from beneficiary disagreements to guardianship matters, these forward-thinking lawyers point out that:
Baby Boomers, having survived the perils of divorce and child rearing, are now discovering a new phase of family crises - dealing with aging parents whose needs place special pressures on families... The issues vary widely from family to family, with seniors increasingly vulnerable to elder fraud and abuse, baffled by the quagmire of medical insurance and expenses, and prone to illness and incapacity. Boomers often find their parents resent and resist efforts by their children to intervene in their lives. Adult children in turn are emotionally unprepared and reluctant to assume unfamiliar roles with their parents. Conflicts among siblings about care for a failing parent are the norm, reviving old family tensions in a new context. These conflicts often end up in court. 
They note that litigation often exacerbates disputes, spends down money needed for the care of elder parents, and unnecessarily destroys relationships between family members by injecting a difficult and hostile solution upon already stressed and distressed caregivers. The court system is not designed to adequately resolve family quarrels, not being family friendly and increasing distrust and resentment:
Surveys have shown a sharp increase in sibling vs. sibling, local vs. remote caregivers, natural vs. step-children, caring for divorced parents (parents-in-law), etc. being contested in court instead of being resolved amicably. Among the litigated issues are disputes over property, inheritances, powers of attorney, gifts, and even disputes over parents' advance healthcare directives. 
Another practitioner in Dallas, Texas, Gary Kollmeier, considers probate disputes to be able to be resolved using collaborative law for the same reasons the collaborative process can work for divorce-related family law matters:
Instead of focusing on getting the largest financial reward no matter the human or financial cost, the parties try to find "win-win" solutions... participants agree to work together respectfully, honestly and in good faith. 
On his website, attorney Dan Tremblay in Massachusetts echoes these sentiments, astutely observing how ill-suited the adversary process in court can be for these kinds of disputes, compared with using collaborative law to resolve many kinds probate and beneficiary-related issues:
The incapacity or death of a loved one too often becomes a declaration of war among family members and others... Collaborative Practice offers a mutually respectful, solutions-oriented option, one that the parties control rather than the courts. Collaborative Practice offers a process that is designed to be less expensive, faster, less taxing on resources and more mindful of preserving relationships than litigation. Collaborative Practice, by design, focuses immediately on resolution through negotiation; on meeting the real interests and needs of the parties. This is different from litigation, an adversarial, positional process which is designed to prepare for resolution by trial. Using a team approach, the parties and their lawyers, and when appropriate and beneficial, independent financial experts and communication coaches, work together to resolve issues and find solutions that are best suited to the needs of each party involved in the matter. 
The repercussions from litigation among family members, especially when it occurs under circumstances of high emotion because of a loved one's passing or looming death, can leave its poison for generations to come. These cases affect not merely the disputants, but also children and other relatives who, although not even directly involved in any disagreement, frequently end up taking sides. The prolonged financial and emotional damage to children, siblings, cousins, spouses, and other relatives can ignite additional disputes and unnecessarily, permanently destroy family relationships of individuals who were not even involved in the original dispute.
Collaborative law also has been found to be suitable for partnership dissolutions, issues involving closely-held corporations, and employment disputes. What all of these matters tend to have in common is the need to preserve and protect ongoing relationships.
Mediation alone may or may not be suitable for some kinds of matters. Mediation is non-adversarial, but unlike collaborative law, mediation does not require an independent lawyer to advise each of the parties to the dispute, who may have disparate bargaining power or sophistication. This occurs with frequency when there has been a history of financial transactions that have involved trust relationships rather than arm's length negotiations and oversight. Mediators may not even be lawyers, but even when they are, they must remain "neutral" and cannot give legal advice. This is particularly important in complicated legal or financial circumstances. Where the parties enter into settlement talks or mediation represented by lawyers outside of the collaborative process, those lawyers may or may not be committed to preserving relationships and staying out of court. Cooperative law also may achieve excellent results, but only collaborative law mandates that the lawyers contract to avoid litigation via the participation agreement.
An article published in the Maryland Bar Bulletin points out that proceeding in the usual adversarial way to litigate disagreements in court may even come to be considered an ethical breach, where other goals such as preserving continuing family relationships are not considered to be equal in importance to preserving legal rights. Lawyers should have at their disposal a familiarity with all of the available processes and tools for dispute resolution, and select the right one for the job.
What you don't know about Collaborative Law could expose you to an ethics violation. Rule 2.1 Comment (5) of the Maryland Rules of Professional Conduct read "...when a matter is likely to involve litigation, it may be necessary... to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation..." In 2007, the Rule was revised to reflect that "...the lawyer should advise the client of forms of dispute resolution that might constitute reasonable alternatives to litigation" which necessarily include Collaborative Law. 
There is now another way. Join the trend.
 Lawrence R. Maxwell, Jr. and Sherrie R. Abney, ""Collaborative Law: The First Option for Resolving Probate Disputes", accessed April 3, 2010, at http://adr-attorneys.com/articles/Collaborative%20Law%20in%20Probate%20Disputes.pdf RETURN TO TEXT
 Professional website of William M. Andrews, Esq., accessed April 3, 2010, at http://www.andrewslegal.com/Overview.shtml RETURN TO TEXT
 William Andrews and Barbara Stagg, "Resolve Family Disputes Without Litigation", accessed April 5, 2010, at http://www.collaborativepractice.com/lib/PDFs/Resolve_Family_Disputes_Without_Litigation.pdf RETURN TO TEXT
 Id. RETURN TO TEXT
 Id. RETURN TO TEXT
 Professional website of Gary Kollmeier, Esq., accessed April 3, 2010, at http://www.kollmeierlawfirm.com/services.html RETURN TO TEXT
 Professional website of Daniel M. Tremblay, Esq., accessed April 3, 2010, at http://dantremblaylaw.com/probate_family_disputes.php RETURN TO TEXT
 Suzy Eckstein, Craig J. Little, Mary S. Pence and Darcy Shoop, "Collaborative Law Nears a Tipping Point", Maryland Bar Bulletin (April 2008), accessed April 2, 2010, at http://mdbar.net/departments/commpubl/publications/bar_bult/2008/apr/tippiBar Bulleti RETURN TO TEXT
Elizabeth Kates has practiced law in Florida for nearly 30 years. She is a director of the National Network on Family Law Policy, and was a charter member and director of Collaborative Lawyers of South Florida, Inc. for eight years before becoming Vice President and Director of Collaborative Lawyers Inc. Collaborative Lawyers, Inc. is a state-wide educational and professional development association and business directory of independent Florida attorneys at law and family law firms who practice in the areas of collaborative divorce and collaborative family law.
Information on this website should not be taken as legal advice. Laws change, situations differ, and there may be exceptions to general rules. Except as otherwise may be provided, this website and contents are © 2009 Collaborative Lawyers, Inc. Collaborative Lawyers, Inc., is a state-wide educational and professional development association and business directory of independent Florida licensed attorneys at law and law firms who practice in the areas of collaborative divorce and collaborative family law. It is not a law firm or attorney referral organization.