Q: What, exactly, is collaborative probate law?
A: Collaborative law has long been used to resolve domestic relations cases—divorce, dissolution, parenting disputes, etc. There was no Ohio statute governing collaborative family law until March 2013, but that did not stop the collaborative family law movement from successfully resolving cases using collaborative family law principles.
The Ohio Collaborative Law Act does not cover probate cases, but the principles still apply, and there are many similarities between domestic relations cases and probate disputes.
Probate disputes often arise between members of the same family and typically involve money, property or custody and control of another individual, just as in family law cases. Few probate matters are completely decided in court, and settlements are often reached only when the parties’ emotional and financial resources are exhausted, just as in family law cases.
Collaborative law settlements tend to be more satisfactory to the parties, and thus more stable and enduring, and the process generally is less stressful and less expensive than going to court. Each collaboration participant is represented by his or her own attorney, and all parties and their attorneys work in face-to-face meetings to resolve probate issues such as adult guardianships, medical treatment decisions, residence and long-term care decisions, property and inheritance disputes, and elder’s remarriage or new relationship and succession planning for a family business. All interested parties can have a place at the table, including the senior subject of a dispute, adult siblings, spouses, grandchildren, concerned friends, support givers and caregivers.
Q: How does the process work?
A: All parties and their attorneys first must approach the court and get permission to put the case on hold while a collaborative settlement is attempted. The parties then sign a collaborative law participation agreement saying they will take a reasoned approach on all issues. Where positions differ, all participants agree to try to create proposals that will meet the fundamental needs of all parties and, if necessary, to compromise on all issues. After the agreement is signed, each party meets with his or her attorney, and then all parties and their attorneys attend the first collaborative meeting.
Almost all business is done in meetings of all parties and their attorneys. Nothing happens in secret. Since the collaborative lawyers are independent from each other, no attorney-client relationship exists between one party’s lawyer and any other party. The parties involved can talk directly to their own lawyers and to the other parties and their lawyers, but they may not threaten litigation, play games or take advantage.
Collaborative family law groups generally have available a cadre of “neutrals” who the parties may agree to use for matters such as real estate appraisal, financial analysis and tax matters. These same neutral experts can be called in to help families in probate disputes.
The attorneys agree ahead of time that, if they cannot help the parties settle the case out of court, they will withdraw and will not represent a party in any court proceeding that is substantially related to the dispute’s subject matter. This allows collaborative law attorneys to devote all their time helping to resolve disputes without having to prepare for trial. Also, it discourages parties who are not serious about settling from engaging in the collaborative process.
In the five steps of the collaborative process, participants:
1) determine goals, interests and concerns;
2) gather relevant information;
3) develop options;
4) evaluate options; and
5) negotiate a settlement.
Q: What are the benefits and limitations of the collaborative process?
A: A collaborative process is less time-consuming, less expensive and less confrontational than a traditional adversarial case. The lawyers represent their parties’ respective interests and can prepare all necessary paperwork, but the parties have more privacy and control in a collaborative settlement than in a traditional court case. Settlements are designed to meet each party’s needs, and the process is especially effective in disputes where money is not the sole issue. Also, probate lawyers can help to prevent disputes from arising in the first place by using the collaborative process when negotiating and drafting wills, trusts, guardianships and other probate documents. Where parties cannot agree to settle their differences, or do not value a negotiated solution that meets the parties’ legitimate needs, the collaborative process is unlikely to be effective.
Q: How does the collaborative probate law process address issues that aren’t strictly legal?
A: Most collaborative probate law practice groups have non-lawyer members who are collaboratively trained and can act as neutral advisors. These may include guardians, physicians, mental health counselors or coaches, geriatric care managers, financial advisors, valuation experts and trust officers.
Q: How can I know if we can use the collaborative process for our probate matter?
Visit with a lawyer or other professional who has been trained in the process. A roster of collaborative lawyers and additional information about the civil collaborative process are available through the website of the Dallas-based Global Collaborative Law Council at www.collaborativelaw.us
. You may also find referral to collaboratively trained professionals by visiting the website of a local collaborative family law practice group.