Most people getting divorced today want to avoid that whole situation of “warring lawyers.” They believe that there must be a simpler way to get professional advice, and to settle their case, without having to engage in a battle between lawyers held in open court. They don’t want all of their problems aired in front of the world. They want to avoid litigation. They might have heard of Collaborative Practice, but they aren’t really sure what it is or how it compares to the more traditional approach to divorce called litigation. One aspect that they might find attractive about Collaborative Practice is that it is confidential. But what does that mean? Since Collaborative Practice is too large of a subject for one blog, this article will give the reader a high altitude look only at confidentiality as it applies in Collaborative Practice.
Collaborative Practice is different from litigation in a variety of ways. One of the most significant differences is the level of public disclosure. In litigation, when a couple cannot agree on some aspect of their divorce, they turn to a court to have a judge make a decision during a court hearing. Leading up to that court hearing, the parties each file a declaration to support their positions and challenge the positions taken by the other party. These written declarations can be very revealing and hurtful, and full of exaggeration. During the hearing, which is held in front of a public audience, additional facts, allegations and assertions – -and exaggerations- – might be stated by either party or his or her attorney in an effort to persuade the Judge. Any member of the public can read what is said in the pleadings, and anybody can attend the court hearings. This aspect of litigation is public; it’s the opposite of confidential.
In Collaboration, on the other hand, a divorcing couple engages in a series of private meetings with the professional team they have selected. These meetings among the parties and their professional team usually last about 2 hours each. During these meetings, the entire team discusses the legal issues the parties face and look for solutions. The professionals who are members of CPSMC are trained to work together and with a divorcing couple to assist then in identifying the legal issues they face, gathering and sharing necessary information, brainstorming a variety of solutions, evaluating settlement proposals, and finding the middle ground that will become that couple’s custom tailored solution.
These meetings are confidential: they are held in a private office, not in court. Nobody tapes the meetings or transcribes them. In addition, the law provides that nothing that is said during such a meeting is admissible in court, regardless whether it is set out in a declaration that is submitted on paper, or someone hopes to repeat something orally to the Judge. Another way of looking at it is this: confidentiality means that nothing said during a joint meeting, and no document prepared exclusively for the Collaborative process, is admissible in any court hearing.
The purpose of this rule is to encourage both parties to be fully open, and to offer full disclosure without the risk of embarrassment. Some folks like to call this “transparency.” Both parties are encouraged to put all their cards on the table, and turn them face up. In practice, it means that nobody can attend a Collaborative meeting and later expect to file a declaration with the court and reveal what someone said or did during the Collaborative meeting.
Confidentiality has some common sense limits. For example, nobody can disclose illegal activity or hidden assets during a meeting and later hope to rely on the confidentiality provisions to keep such information private. In California, everyone who is getting divorced has a fiduciary obligation to his or her spouse to make a written disclosure of all assets, all debts, and all business and investment opportunities that s/he is aware of. No one can evade this obligation to disclose information by first doing so in a Collaborative meeting and then trying to rely on the confidentiality rules to keep that information from coming out in the open. Their duty to disclose trumps the confidentiality provisions.
Similarly, nobody can threaten anybody else during a meeting and expect the confidentiality rules to protect them from having to face the music flowing from such a threat. No party can threaten the health or safety of the other party, their children, or any of the professionals and expect to hide behind confidentiality.
Collaborative Practice offers a divorcing couple an opportunity to have a series of confidential meetings with their professional team, composed of attorneys, mental health professionals and financial specialists, all of whom are there to help the parties sort out the legal issues that divorce can trigger. The professional team members are trained to quell disputes, not make them worse. And of particular importance to many people, these meetings are confidential.
If you would like to learn more about Collaborative Practice, please contact one of the professional members of Collaborative Practice San Mateo County. Each of them is eager to discuss this process with you, including what confidentiality means.
This articles was jointly written by Timothy D. Martin and Lydia Crandall, both of whom are attorney members of CPSMC.