Butler Tibbetts Partner Meredith McBride recently authored an article for the American Bar Association Section of Family Law entitled “Collaborative Law with DV Cases: Could You? Should You?” Read the full article below.
Collaborative Law is an alternative dispute resolution where the entirety of the divorce process (outside of the filing of the final settlement agreement and divorce judgment) takes place outside of the court system. Because collaborative law relies heavily upon the parties working together to reach an agreement, many practitioners believe you cannot or should not engage in the collaborative process for cases where there is domestic violence or coercive control. In fact, since the beginning of the collaborative process, many have discouraged collaborative lawyers from accepting cases involving domestic violence. On the other hand, there are many who advocate that there are instances where the collaborative process may be a better option for the at-risk party by preventing them from being re-abused through the court system, giving that party some of their power back, and decreasing the risk of future harm.
One of the issues of concern for handling cases involving intimate partner violence or abuse is that free will and consent are vital to the collaborative process. Where there is a history of coercion or violence, it becomes difficult to ensure that both parties are acting out of their own free will and that one party is not being coerced or unduly pressured by the other party. For practitioners who engage in collaborative law for domestic violence cases, it is vital to first engage in an extensive intake and evaluation process to determine if the case is appropriate for collaborative and if your client can handle and engage in the collaborative process. It is also important to constantly evaluate and assess through the process to determine whether your client is being manipulated or coerced if your client is the recipient of the abuse and to evaluate whether or not your client is seeking to manipulate or control the other party if your client is the perpetrator of the abuse. There may be instances where the collaborative process breaks down and is not possible; this is true in all collaborative cases, but it is especially key in cases with domestic violence or coercive control that the advocates on both sides continually evaluate and assess to ensure that the abuse is not being perpetuated through the collaborative process.
For those states where the UCLA (the Uniform Collaborative Law Act) has been passed, there are explicit intimate partner violence obligations that must be complied with and if not, could result in lawyer liability. For those states where the UCLA has not been passed, the obligations set forth in the UCLA are still an excellent and important roadmap for all collaborative law practitioners that handle domestic violence cases.
With all of the concerns about handling domestic violence cases collaboratively and additional hurdles necessary, many practitioners may wonder, why bother? In some instances, that is probably true. However, in other cases there are reasons why the collaborative process is a better option for a domestic violence case (and not just because many collaborative professionals think collaborative is always the best option!).
In many instances, those parties who were the recipients of domestic abuse and coercive control find that the court system becomes another way in which their abuser abuses and victimizes them all over again. That continued abuse can be from the abuser refusing to engage in discovery or ignoring all court orders so that the at-risk party is forced to go to court over and over again to enforce their rights. It can also be at hearings and trials where opposing counsel’s questioning and hostility becomes another form of abuse. Individuals who have suffered abuse are often retraumatized by others denying the abuse or accusing them of being liars, a hostile cross-examination or a judge who does not believe the abused party will be re-victimized by the court system. Oftentimes our court system is not set up to provide justice or have perpetrators of domestic violence and coercive control be held accountable for their actions, which can be especially difficult for recipients of abuse to handle.
Further, the court system results in a loss of control for both parties in the divorce process. For a perpetrator of domestic violence who craves control, the loss of control will compel them to act out and seek to abuse and control their established victim—their spouse or the children. For the at-risk party, the collaborative process gives them an opportunity to regain something crucial they may have lost in the marriage, power and control. The collaborative process will give them the ability to have a say and control in the outcome of the divorce and their future going forward. When done correctly, the collaborative process can be an empowering process for the at-risk spouse.
Additionally, where the abusive spouse feels they have a sense of control in the process rather than being “screwed by the judge” they also are less likely to perpetuate future harm on their former spouse.
If after taking all of the foregoing into consideration and having performed a full and extensive evaluation, you decide to go forward with a domestic violence case using the collaborative process, there are a few tips to ensure the process is handled correctly. First, as already stated, evaluate, evaluate, evaluate, constantly monitor to ensure that the abuse is not being perpetuated through the collaborative process and do not be afraid to end the collaborative process if you believe it is.
Next, when compiling the team, ensure to engage a mental health professional with domestic violence experience and ensure the mental health professional is fully apprised of the situation and history between the parties. The mental health professional can also take on the role of evaluating and monitoring the case to ensure that the abuse is not being perpetuated through the collaborative process. Regardless of who you represent, you may also want to suggest that your client engage in private, individual therapy to work through the abuse related issues.
As the process is ongoing, take steps to ensure the parties are not alone together. Where there are in-person meetings or mediation sessions, have the at-risk party arrive 30 minutes early and where possible, use a separate entrance. Ensure that the perpetrator of the abuse leaves first and has left the premises before the at-risk party leaves. Instead of having full team meetings in one room together, you may have to keep the parties in separate rooms throughout meetings or mediation sessions. Alternatively, utilizing video conferencing such as Zoom or Teams is a great option for domestic violence cases.
Throughout the collaborative process but especially during any meetings, when you represent the at-risk party, constantly monitor and take regular breaks to evaluate whether your client (or you) feel manipulated, threatened, demeaned, or charmed—yes charmed is a big part of coercive control. If one or both of you feel that way, it may be time to put the brakes on the collaborative process. Discuss with the other party’s attorney the fact that you or your client feel he/she is utilizing coercive control and/or abusive tendencies. If the other party can reel it in and cease such actions, potentially the collaborative process can continue but it may be time to pull the plug.
When questioning whether or not you can pursue a case collaboratively where there has been domestic violence, could you? Probably, unless your state prohibits it. Should you? That will depend upon you, the parties, and whether everyone is willing to take the steps necessary to engage in a collaborative case without having the abuse continue as part of the process.
This article was originally published by the American Bar Association.
For guidance on the collaborative law process, contact us.
Related practices: Divorce & Family
