What Is A Collaborative Lawyer and Why Do I Need One?
What comes to mind when you hear the word "lawyer?" Many people immediately think of the lawyers on their favorite legal tv shows, constantly arguing with one another and then immediately waltzing into court to have their "you can't handle the truth" moment. (Very unrealistic, by the way.) Yes, many attorneys try cases or argue appeals in court, but there are innumerable other kinds of law and ways to practice law that don't involve presenting a case in court and giving either a judge (or judges) or a jury the power to determine the outcome of the case.
One type of law practice that bucks all trends and stereotypes is collaborative law.
Collaboration occurs when two or more people or entities work together to achieve a common goal. Collaboration goes beyond simple compromise, which sees the domain of solutions as pie, a finite thing to split up. Compromise is a binary approach to a problem, in which one person has to give up something so another person can get something else. Instead, collaboration envisions a multidimensional domain of creative solutions. It delves past the surface of me versus you and us versus them and asks what interests are at play that drive our various needs and wants? Where do these underlying interests overlap in ways that we can find workable and sustainable win-win solutions?
The collaborative law practice, as defined by the International Academy of Collaborative Professions, "is a voluntary dispute resolution process in which the parties settle without resorting to litigation." As part of the process, the parties and their attorneys agree to the following:
- Full transparency through voluntary disclosure of all relevant and material information;
- A commitment to use good faith efforts in negotiations to reach a mutually acceptable settlement;
- An agreement that if settlement is not possible and either party moves forward with any contested court proceedings, their respective collaborative attorneys must cease working with them.
The collaborative process typically also includes engaging a neutral coach who facilitates the process. The parties may also engage other neutral experts, such as mental health, financial or real estate experts, whose engagement also terminates if either party initiates a contested court proceeding.
The coach facilitates the process and keeps everyone on task. The collaborative lawyers provide legal guidance and advice to their clients while also helping their clients take a deeper look at the interests involved. Collaboratively trained lawyers, like mediators, use active listening, reframing, reflecting, and other conflict resolution and management skills to help the participants move through impasse and shift to thinking of all participants as part of a team that will solve the problem together. This, in turn, encourages the participants to begin to explore a more expansive array of solutions.
Without a doubt, conflict is so hard. When humans feel attacked we dig further into our positions. It's our brain's way of trying to protect us. Unfortunately, it can and often does impede the possibility of resolution. By engaging in an intentionally collaborative process, people do not avoid their disagreements. Rather, they face them head on, but they do so within a supportive framework. As a result, they are more likely to have all the information they need to make well-informed decisions and more likely to remain focused on the issue and not the people. As a result, the chance of feeling attacked decreases and the space for exploring options with curiosity and trust increases. It's a win-win for everyone.
For more information regarding collaborative law, see the Massachusetts Collaborative Law Council website, www.clcorg.org, or the International Academy of Collaborative Professionals website, https://www.collaborativepractice.com/what-collaborative-practice.
To learn more about interest based negotiation, see Getting to Yes: Negotiated Agreement Without Giving In, Roger Fisher & William Ury (Penguin 1991).
To learn more about the high conflict cycle, see High Conflict: Why We Get Trapped and How To Get Out, by Amanda Ripley (Simon & Schuster, 2021).
Autism and Divorce Mediation
One of the most compelling reasons to mediate a divorce (or any dispute for that matter) is that mediation ensures the parties to the dispute maintain control over the outcome. I regularly remind my clients that no matter how carefully you explain all the factual issues to a judge, a judge who has only met you in court a few times isn't going to understand the ins and outs of how your family functions and what is best for your children like you, the co-parents, do. This is true for every family, but perhaps it is an even more compelling reason to mediate for families with autistic children.*** Most judges or magistrates do not fully understand autism, and they certainly won't fully understand the additional considerations for families raising autistic children.
Here are a couple ways mediation can help divorcing families with autistic children.
Difficulty with Transitions
Many autistic children struggle with transitions. We all experience hundreds of transitions daily. For example, waking up, getting dressed, putting down a favorite video game or book to do something else, going to school, and changing classes are all examples of transitions. We all struggle with transitions at times. Hunger and exhaustion often make transitions more challenging. In addition to these factors, autistic children may also struggle with the cognitive adjustments that are necessary to move through the transition.
Divorce is a big transition for everyone involved, and it may take autistic children more time to process what divorce means for the family and what changes will occur. Mediation can be a helpful tool for co-parents to develop a plan to explain to their children what some of the initial changes will look like and to give their children time to process and adjust to those changes. For example, parents of an autistic child might develop an agreed-upon script for explaining to the child, together and individually, what changes they can expect and when. Parents can also include their child's providers, such as their BCBA (Board Certified Behavior Analyst), in the discussion to help them develop and implement consistent routines in both households that will help the child more easily manage transitions from one house to another and from home to school. No two autistic children are the same and no two co-parenting discussions are the same. The needs of the child and the family as a whole will, of course, also change over time. So, this won't be a one-and-done discussion, and there is not a one size fits all solution. Having these conversations during the divorce mediation process, however, can help make the larger transition easier for the child, which, in turn, makes it more manageable for the parents and the entire family.
Many autistic children and adults have special interests. Special interests are not mere hobbies. A hobby is something that people enjoy doing, usually in their spare time, and may not want to put it away to focus on school, work, or other obligations. A special interest, however, is far more than this. The need for a special interest often increases as stressors increase. It is something that the individual can control, knows inside and out, and uses to help ground themselves and reenergize themselves when the capacity for employing other coping methods has dwindled. For example, a student that has depleted their internal socioemotional resources during the school day may require designated time to focus solely on a special interest. In my son's case, his special interests come in the form of practicing his competitive cubing (Rubik's Cube) skills and reviewing roller coaster statistics (name, location, year built, height, slope, number of inversions, etc.). Other special interests may include sports statistics, historical trivia, playing certain games, listening to a certain song, watching a certain movie... the list is as varied as the people are.
Mediation can be an avenue for divorcing parents to fully explore how they will support their children in their special interests when they live in separate households. Will they adhere to the same routine in both households so that the child can have their special interest time when needed? If the special interest requires something additional, such as a magazine subscription or a Rubik's Cube, will each household have its own or will the child transport it back and forth? Who will be responsible for any fees or costs associated with the special interest? Will the parents set money aside or give the child an allowance to use toward funding the special interest? Understanding the importance of the special interest and providing consistency for the child is the most important thing. Mediation allows the families to ensure both, whereas a judge's order may not appreciate this importance.
Of course, there are other topics for which these types of facilitated discussions can be very helpful and extremely important. For example, parents of a child with significant medical needs, such as regular hospital stays or medications, can benefit from a mediated discussion that addresses who takes the child to medical appointments, how the parents keep track of medications and refills, and how the parents share the costs of medical treatments/ A child with sensory processing challenges may use a calming pod or a bean bag to help regulate themselves. The parents can take advantage of the mediation process to discuss how they will address the child's sensory needs in each of their houses. For parents of children who receive government disability services, parents may wish to discuss and reach an agreement about the parents will share responsibility for maintaining contact and updating information with the government service.
In short, mediation is a valuable tool for families of children with special needs. Among other things, it helps parents think through the current circumstances and what may come in the future so that when a new issue arises they are prepared, not only because they have already had similar discussions during mediation, but also because mediation has provided them with some more tools for healthy and productive difficult conversations. And that is good for everyone.
***I am an attorney and mediator, but not a doctor, autism expert, or family therapist. The ideas shared here are based on my personal experience as a parent to autistic children, reading what actual autism experts have to say (including but not limited to Temple Grandin and Steve Silverman), and my professional experience as a mediator.
New Hampshire Workers Compensation Medical Marijuana Reimbursement Not Preempted by Federal Law
Workers compensation insurers may now be held responsible for reimbursing the cost of medical marijuana in New Hampshire. That's according to a NH Supreme Court decision issued March 2, 2021, which held that federal law does not preempt such reimbursement.
In Appeal of Andrew Panaggio, Panaggio, a qualified patient of NH's therapeutic cannabis program with a valid NH cannabis registry identification card, sought reimbursement through workers' compensation insurance for the cost of his medical marijuana. The carrier argued that it was not reasonably or medically necessary, and the first level hearing officer sided with the carrier. Panaggio appealed to the Compensation Appeals Board, which upheld the lower level decision on the grounds that "such reimbursement is not legal under state or federal law." When Panaggio first appealed this decision to the NH Supreme Court, the Court ruled that an order to reimburse medical marijuana did not violate state law and remanded the matter back to the Compensation Appeals Board. The Compensation Appeals Board again denied the reimbursement claim, stating that federal law preempted such an order. Panaggio again appealed to the NH Supreme Court.
After conducting a thorough analysis of federal preemption questions, the Court determined that there is no preemption: (1) There is no liability preemption because the order for reimbursement does not directly conflict with federal law as the federal law does not make insurance reimbursement for an employee's purchase of medical marijuana a criminal offense. (2) There is no obstacle preemption because the federal government would still be able to enforce the law. That is, the federal government could still prosecute Panaggio for possession of marijuana, despite the Compensation Appeals Board ordering the carrier to reimburse Panaggio.
In sum, when faced with a request for medical marijuana reimbursement, workers compensation carriers must evaluate it the same way they would evaluate any medical prescription. They must evaluate whether the medical marijuana was medically and reasonably necessary with respect to treatment of the industrial accident
ADR, Mediation, Arbitration...What's It All Mean?
Mediation. Arbitration. Conciliation. So many terms for conflict or dispute resolution, but what do they each mean? For most people it can be challenging to keep track of and understand it all, especially since some terms are used interchangeably (Note: I use conflict and dispute resolution interchangeably here).
To make matters worse, sometimes terms are used interchangeably that don't actually mean the same thing (e.g. mediation and arbitration, see below), and often pop culture, television and films give us conflicting, and sometimes even incorrect, information about what each of these processes should look like. So, here is your conflict resolution terminology primer*:
- Alternative Dispute Resolution ("ADR") encompasses many different dispute resolution processes. The common thread is that each process is designed in a manner to help the parties work out their disagreements without going through a court trial. Think of ADR as the big tent you set up for an outdoor party.
In our outdoor party analogy, the following specific types of ADR are akin to individual tables. They all fall under the ADR heading, but each one has its own special personality.
- Mediation: Mediation is a non-binding, voluntary, confidential, self-determinative process in which an impartial or objective neutral person (or persons) helps the parties find a solution to a problem. Although a mediated agreement is usually binding on the parties after they sign it, the mediation process is not binding. In other words, the parties always retain control over the decision to participate in mediation; for how long to participate in mediation; and, what offers to make, accept or refuse. There are a number of different kinds of mediation. A few of the most common are:
- Facilitative. This is the most traditional form of mediation, in which the mediator facilitates communication by and among the parties to help then understand their respective interests so that the parties can come up with a solution that works best for them. In facilitative mediation the mediator doesn't make judgments and keeps his or her own thoughts about the merits of the arguments or the proposed solution to herself.
- Evaluative. Whereas facilitative mediation is focused on underlying interests, evaluative mediation is more concerned with the merit of the respective arguments and fairness. An evaluative mediator may inject her thoughts about possible outcomes into the process.
- Online Mediation. This is mediation via video, text, email or some other virtual platform (i.e. Slack, Goodgle Hangout). The platform is different but underlying mediation processes are the same and may be facilitative, evaluative or some other form.
- Arbitration. Arbitration is a binding ADR process, in which the parties select a neutral, or a panel of neutrals, to hearing the evidence in a case and make a decision. It is conducted much like a trial, albeit more informally and typically without strict adherence to the rules of evidence. Arbitration is a binding process because once the arbitrator issues a decision it is extremely difficult to overturn it. The Federal Arbitration Act, the Massachusetts Uniform Arbitration Act and the New Hampshire Arbitration Act provide very limited reasons for vacating an arbitration award.
- Med-Arb / Arb-Med. These are two hybrid models that combine mediation and arbitration. In Med-Arb, the parties begin with a mediation. If they resolve the case through mediation the process ends. If they do not successfully resolve the matter, however, they move into an arbitration phase in which either the mediator takes the role of arbitrator or a new neutral comes in to act as the arbitrator. The arbitration decision is binding. In Arb-Med, the parties argue the case to the arbitrator like they would in a standard arbitration. The arbitrator makes her decision, writes it and seals it. Then, she attempts to mediate the case for the parties. If the parties reach a mediated agreement, the parties don't see the arbitration agreement. If the parties do not reach a mediated agreement, the arbitrator presents the previously sealed decision and it becomes final and binding on the parties.
This is not an exhaustive list; there are many other types and iterations of dispute resolution. If you have a dispute that you would like to put behind you, we can work with you and all parties involved to find the most appropriate dispute resolution process for your particular situation.