Collaborative Law: A Peaceful Alternative to Traditional Divorce
Collaborative divorce is the new buzz word in family law practice. Its proponents enthuse about better and less costly settlements, greater client satisfaction, fewer accounts receivable, and less stress in the practice of law, than they can achieve through a conventional approach to family law disputes. How realistic are these claims? What are the down sides of "collaborative divorce"? Does the concept of "collaborative divorce" present ethical pitfalls and possible malpractice minefields for the unwary practitioner?
Good Lawyers Routinely Practice Cooperatively
Even the most enthusiastic supporters of "collaborative divorce" concede that the concept of settling cases rather than litigating them is hardly novel. Capable family law practitioners have always directed their effort and creativity toward reaching agreement rather than duking it out in court. It isn't news to anyone that litigation is expensive - sometimes prohibitively so - and that the most satisfactory settlements derive from skilled negotiation between capable counsel rather than a court-imposed resolution of disputed issues. How does the idea of "collaborative divorce" differ from what experienced practitioners do as a matter of course?
Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and value assets, set and meet scheduling deadlines, and otherwise facilitate resolution of the case. They respect legitimate positions taken by the other party and encourage their clients to be realistic and respectful as well. They are willing and able to compromise, and they are creative in crafting acceptable resolutions of disputed issues. collaborative law supporters intimate that their process is unique because lawyers commit that they will not "threaten, insult, intimidate, or demonize" other participants in the divorce process. Good lawyers don't do that now. The American Academy of Matrimonial Lawyers, which historically has provided a model for good practice nationally, has promulgated "Bounds of Advocacy" that set a high standard for professional courtesy and cooperation.
Financial cost. "Collaborative divorce" supporters want to reduce the costs of the process by streamlining the discovery process. This also is not a new idea. Good lawyers have always sought to keep formal discovery to a minimum, to share costs of appraisals, to stipulate to values, and to cooperate in other ways to keep costs down. Many experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in person conferences with experts, and other such collegial arrangements.
As the above analysis indicates, the goals espoused by "collaborative divorce" lawyers do not differ in degree or in kind from the goal of the vast majority of the Wiltshire family mediators law bar. Most lawyers try a cooperative approach first. Most lawyers agree - and most of their clients concur - that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.
Unsettled Legal Issues. Legitimate reasons to resort to litigation are not always evident at the beginning of a case. Much appellate work involves issues the existence of which - or at least the seriousness of which - did not surface until significant discovery and negotiation had occurred. Where the law is unsettled or where counsel genuinely disagree about the appropriate interpretation and application of the law to the facts of their case, it is not only reasonable but necessary to ask the judge to intervene. Lawyers can commit themselves to conduct the proceedings without animosity and can counsel their clients to be courteous to the other side. But the court has the last word on interpreting and applying the Coventry collaborative law.
Reality Testing. All clients say they want a "fair" result and many of them genuinely mean it. But they may have a very self-absorbed definition of "fair." Many years ago Leonard Loeb, whose wisdom and example have greatly influenced the development of a civilized standard of practice for Hampshire family mediation law attorneys, pointed out an important truth.