Monica and Mitchell Mandell were married in 1998. They have three children. After Mr. Mandell moved out last year, his wife retained attorney Ellen Jancko-Baken to represent her. Ms. Mandell was interested in pursuing the “Collaborative Law” process.
After three perhaps “preliminary” meetings, the contemplated Collaborative Process fell apart. Ms. Mandell used her same attorney to commence a divorce action. Her husband, then, looked to disqualify his wife’s lawyer, claiming such representation was barred by the rules of Collaborative practice.
As noted by Westchester Supreme Court Justice Alan D. Scheinkman in his June 28, 2012 decision in Mandell v. Mandell, the Collaborative Process is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court.
As Justice Scheinkman noted, one of the principal features of the Collaborative Process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to reach a settlement may not thereafter represent the parties in contested litigation. Among other benefits, this hallmark of the process:
- eliminates pre-litigation posturing;
- provides clients with a greater degree of influence in candid negotiations in which the clients participate directly;
- motivates the parties to continue working toward a mutually agreeable resolutiont due to the prospective expense of having to hire new lawyers if the matter has to go to court;
- makes it clear that counsel are committing themselves to the process of dispute resolution by having counsel agree to absent themselves from any future litigation;
- gives counsel an economic incentive to stick with the process;
- discourages counsel from abandoning the process since their role, and their fees, would end; and
- conversely, provides counsel with no personal monetary incentive to encourage litigation.
In light of his wife’s interest in using the Collaborative Process, the husband retained Neil Kozek. Both Ms. Jancko-Baken and Mr. Kozek are members of the International and New York Associations of Collaborative Professionals.
Ms. Mandell, however, was not absolutely committed to the process. Instead, she had a pre-condition: the resolution of her immediate interim financial concerns.
The parties and their counsel met for the first time on November 17, 2011. Ms. Jancko-Baken prepared and circulated an agenda for the meeting. One of the first issues on the agenda for the meeting was a review of the “Participation Agreement.” In Collaborative Law, the participation agreement is the contract which binds the parties to abide by the rules of the process. However, the Participation Agreement was not signed at that first meeting.
The parties now disputed why signing the Agreement was deferred. Ms. Mandell asserted that she agreed with her attorney that they would not sign the Participation Agreement until they were both satisfied that Mr. Mandell had made an honest commitment to the process by agreeing to a resolution of the interim support dispute.
The “minutes” of the meeting [another feature of the Collaborative Process] confirmed that interim support was discussed without resolution. Review of the Participation Agreement was placed on the agenda for the next meeting. The minutes did not indicate that there was any discussion of the Participation Agreement at all, much less any discussion as to why the parties had not signed it.
The second meeting proceeded, but the issue of temporary support was not resolved. The Participation Agreement remained unsigned. A third meeting was held with the same result.
Ms. Mandell, then, commenced this action for divorce. Mr. Mandell moved to have Ms. Jancko-Baken disqualified as his wife’s counsel. It was argued that the three meetings should be deemed to be engaging in the Collaborative Process and, therefore. counsel should be bound by the Process’s rules despite the absence of a signed Participation Agreement.
Justice Scheinkman disagreed. The Collaborative Law process is a voluntary process. It cannot be compelled absent the parties’ consent. That consent is to be made manifest by signing the Participation Agreement.
The Court noted that parties to any dispute or litigation — matrimonial matters included — are free, if they wish, to engage in settlement discussions, whether before, during or after the commencement of litigation. In matrimonial matters, parties may opt for direct negotiations (either with or without counsel), mediation (whether conducted by a judge, non-judicial staff, a court-annexed mediator, a professional mediator, or even a third-party such as a family member or friend), or even, subject to public policy limitations, arbitration. Collaborative law is such a settlement technique.
Outside the divorce arena, agreements to arbitrate need not be signed. However, it is generally considered necessary for there be a written arbitration provision to which the parties have manifested their consent.
With matrimonial law, no agreement made before or during the marriage is enforceable within a divorce action unless the agreement has been duly signed and acknowledged by the parties (DRL §236, Part B, subd. 3). The courts cannot enforce provisions for alternative dispute resolution which are contained in writings executed without compliance with the formalities required by statute.
Moreover, Justice Scheinkman held that the fact that secret or “confidential” information may have been discussed at the initial meetings did not require Ms. Mandell’s lawyer’s disqualification. Attorneys and clients often share information and engage in settlement dialogues. The Court noted that it would be quite astounding if an attorney, having obtained information during settlement negotiations, would could be disqualified from participation in litigation. To foster such negotiations, C.P.L.R. 4547 protects the confidentiality their content. Clients might well decline to participate in candid negotiations lest they be deprived of the services of their trusted counsel.
Defendant has cited no authority for the proposition that an attorney’s exposure to confidential information during settlement negotiations compels the disqualification of counsel. This Court declines to create one.
Mr. Mandell did not here seek to compel his wife to engage in collaborative law. Rather, he sought to enforce that provision of the unsigned Participation Agreement which would require his wife’s counsel to step aside. This, the Court ruled, Mr. Mandell may not do. Because the Participation Agreement was not signed and acknowledged by the parties, it was unenforceable in this matrimonial action.
Your author also serves as counsel in Collaborative Divorce matters. He, too, is a member of the International and New York Associations of Collaborative Professionals, as well as Collaborative Dispute Resolutions.
The Collaborative Process is transformative. It transitions the family from married to divorced. It also provides the parties with an increasing array of skills to help them reach their settlement and continue on as co-parents or simply, ex-spouses. Mental health “coaches” or “Family Specialists” should be used to assist the parties through the process.
In that context, having a pre-condition to the process is a recipe for failure. Ultimata are counter to the concepts. Even if it is a “leap of faith,” the participants need to commit. The rewards are inestimable.