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.