What Is Collaborative Law? An Interview with Choose Collaborative’s Mara Bernstein

The Collaborative Law Process is a conflict resolution strategy that helps families save time, money, and stress. This private agreement between the parties focuses on resolving family law issues out of court. The process started in 1990 and has seen slow but steady growth in the United States.

Nowadays, all 50 states and every Canadian province accept collaborative law. The American Bar Association estimated there were 20,000 trained collaborative lawyers and 50,000 completed cases in a 2018 report.

Although nobody plans to settle family matters in a court of law, many do. For instance, about 45 percent of marriages will end in divorce, according to estimates by the National Center for Family and Marriage Research. So, the chances are that we — or someone we love — will face a situation where we have to choose the best resolution method to handle a family law case.

To learn more about collaborative law and how it helps families, we interviewed Mara Bernstein, a Family and Marital Law Attorney, accredited Collaborative Divorce Attorney, a Divorce Mediator, and a member of Choose Collaborative.

Mara Bernstein, Tell us a little about yourself and your journey to collaborative law

Bernstein: I began practicing family and marital law in 1989 with a preeminent law firm in New York City, representing celebrities, public figures, and high asset clients. Having studied Social Work at Cornell University and throughout my years at Brooklyn Law School, I have always been focused on counseling, guiding, and advocating for my clients with the goal of EMPOWERING them through the often difficult terrain of divorce.

What is collaborative law? Interview with Mara Bernstein
Mara Bernstein, Esq is a Family and Marital Law Attorney, accredited Collaborative Divorce Attorney and a Divorce Mediator.

Unfortunately, in the late 80’s and early ’90s, litigation was really the only “game in town,” and at least on the East Coast, with higher net worth clients, alternative dispute resolution (mediation and collaborative divorce) was uncommon.

After witnessing the emotional and financial devastation that my clients often endured as a result of divorce litigation,  I started researching and looking into divorce resolution methods where clients could resolve their disputes in a private, confidential setting while maintaining control over the timing, cost, and outcome of their case.

Most people don’t know this but litigated divorce and family law cases are in the public record for all to see. Your finances, your personal information as well as your “dirty laundry” are a mere google search away–nothing is truly private or confidential in divorce proceedings.

Of course, there are always cases that need a judge to come into a case and take control, e.g., where there is a lack of transparency on either or both sides or domestic violence. However, for the most part, I witnessed clients spending their hard-earned marital assets on attorneys only to hand their future and their children’s future over to a  judge with an overloaded caseload.

The outcome after months and years of battling it out in the courtroom was rarely positive for either party and, all too often, devastating to the children and the family.

What is collaborative family law?

Bernstein: Collaborative Family Law provides clients with a private, confidential out-of-court resolution to divorce and other family law issues.  Instead of fighting it out in court, each party hires their own collaboratively trained divorce lawyer who advocates, educates, and works with their respective clients to problem solve a resolution of their case.

Unlike litigation which can take years, the Collaborative process is efficient, expedited, and focused on working to avoid the emotional and financial devastation and destruction that contested divorce litigation often brings on families.

Additionally, due to the multifaceted nature of divorce–  legally, emotionally, and financially, the clients have the benefit of working with a neutral facilitator who oversees the process and helps with children’s issues, communication, and ensuring that the process is moving efficiently and in a streamlined manner. Finally, a neutral financial professional educates the clients and works with all parties to distribute assets, identify sources of income and discuss tax implications of each transaction.

This process gives the clients the power to come up with creative, out-of-the-box solutions rather than having a judge dictate what their future will be. Statistics show that, by and large, compared to contested litigation, collaborative divorce takes less time and is less expensive overall.

Collaborative law compared to mediation — What is the difference?

Bernstein: Both are alternatives to litigation.  The difference is mediation is more of a “one-shot deal” where clients resolve their case with an impartial mediator who is unable to give them legal advice or advocate for either of the parties.

In very simple cases where there are few assets, w2 employees, and relatively no issues regarding children, mediation can be a great option where the clients are in agreement that they are open to settling their case.

However, in cases where there are assets and closely held businesses and/or issues regarding support and children, mediation is often unsuccessful as there are complicated issues that may require the expertise of an accountant, child specialist, and or lawyer to resolve.

In Collaborative divorce, each party has their own attorney and the expertise and support of a neutral accountant and neutral facilitator with a mental health background, both of whom work with the lawyers and the parties to come up with a resolution that meets the parties’ needs in a time and cost-efficient manner.

What are the typical costs of collaborative law, and how do they compare with regular legal costs?

Bernstein: By and large, Collaborative Divorce is less expensive than contested litigation.  The reason is that in litigation, the lawyers are adversaries, working against each other in a win-lose scenario.  Very often, there are also forensic accountants and child specialists who are also fighting against each other. Add into that, unnecessary motions, delays, hearings tactics are all too often designed to delay and frustrate a resolution of the case.

Conversely, Collaborative is a targeted process where the professionals act as problem solvers and not “s–t stirrers”–because there are no delay tactics and gamesmanship, the process is focused. Clients are spending their hard-earned dollars on getting a prompt, efficient, and effective resolution.

What are the advantages and disadvantages of collaborative law?

Bernstein: Collaborative law is:

  • Faster
  • Less expensive
  • Clients maintain control over process, timing, and outcome
  • Support of a team of professionals
  • Protects family relationships for the benefit of the children
  • Private and confidential

As for disadvantages:

  • If the process terminates for any reason, parties need to hire new attorneys. In my mind, this can ALSO be seen as an advantage as it gives clients “skin in the game,” knowing that if they do not use their best efforts to work it out, they need to begin again with new lawyers.
  • Can’t think of anything else!

What are some statistics you would like to share about collaborative law?

Bernstein: The Florida Academy of Collaborative Professionals (FACP) engages in research and data collection to provide statistics regarding collaborative cases in Florida. The data is based on surveys completed at the end of each collaborative case. The data collection is ongoing and the information below is based on responses submitted between December 16, 2013 and January 31, 2018. The statistics show:

  • 92% of cases completed with a full settlement agreement;
  • 31% of cases took less than 3 months;
  • 65% of cases took less than 6 months;
  • 84% took less than 9 months
  • 5% took more than 12 months.

These cases resolve faster because the process is efficient and streamlined. In Collaborative Divorce, unlike in litigation, we do not encounter continuances, motion practice, backlogged courts and, oftentimes, needless delay tactics.

Similarly, because the Collaborative process is targeted, directed, scheduled and the team is working together to problem solve a resolution,  resulting in fewer delays and less gamesmanship compared to litigated cases, Collaborative Divorce is less costly.