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Restoring Sanity to the Divorce Process

Why Collaborative Law?

Civilized Divorce

 

Restoring Sanity to the Divorce Process

At a recent gathering of lawyers, two former law school classmates were overheard reminiscing. One of them commented about the fact that each of them had married a psychotherapist. "How interesting," he said, "we each married someone in the helping professions, while we’ve chosen one of the harming professions."

If it is true that lawyers often do more harm than good (albeit unintentionally, for the most part), it is nowhere more true than in the field of divorce law, which, as it is practiced in the United States, causes more stress than it cures.

Consider the average couple on the verge of divorce. Often only one of the spouses wants to end the marriage; the other may know that there are problems but wants to keep trying. In such marriages, one spouse likely feels betrayed, vulnerable, worthless, angry, and possibly depressed; the other spouse may feel guilty about ending the marriage and yet angry about the relentless blame and clinging behavior of his or her spouse.

Then introduce this couple – going through one of the most difficult, emotionally charged episodes of their lives – to their respective divorce lawyers. These two gladiators are trained to search out and exploit the peccadilloes of the opposing party. Every legally relevant fault of the other spouse – and in our system of family law jurisprudence, they are virtually all "relevant" in the sense of being admissible at trial – will be described in unforgettably harsh language by opposing counsel either in a public courtroom or publicly available papers filed in court.

Although only a few divorce cases go all the way to trial (some estimates are as low as 5%), a substantial number go all the way to a pretrial conference, in which the parties submit memos accusing each other of high crimes and misdemeanors. This process usually destroys whatever modicum of good feeling the divorcing couple might have been able to salvage from the wreckage of their marriage – a tragically counterproductive outcome, especially for couples with young children. And even for those fortunate couples – perhaps half of them – whose cases get resolved with only modest courtroom skirmishing, the legal structure for obtaining a divorce produces decidedly counter-therapeutic effects for both clients and, to an extent family lawyers have long known but seldom discussed, divorce attorneys as well

As a result, many lawyers in the United States, including many general practitioners, refuse to practice family law. It is too painful, some lawyers say. It is too "messy," say others who feel uncomfortable inquiring about the most personal details of their clients’ lives. "The clients are impossible," say others whose clients need but often are not getting mental health treatment.

Eleven years ago, a small group of lawyers in Minnesota decided there must be a better way to practice family law. They created a model called Collaborative Law (CL), in which lawyers agree to do everything possible to resolve their cases without going to court, or filing court papers, until an agreement is reached. If they fail to reach a settlement, the lawyers are obligated – by virtue of a CL contract signed in advance by the lawyers and their respective clients – to withdraw from the case and refer the clients to trial counsel.

CL agreements focus everyone’s attention on problem-solving instead of unproductive argument and posturing. The economic interests of the lawyers and clients are aligned because failure to reach a settlement will impose additional expense on the clients and, for the lawyers, bring their work on the case to an end. 

Improved Communications in Collaborative Negotiation
There is more, however, to CL than simply promoting settlement – CL involves a dramatic paradigm shift for the participants in the process. CL negotiations typically occur in four-way meetings with ground rules that encourage respectful listening, non-inflammatory language, and interest-based (rather than positional) bargaining. In those meetings, the participants agree to take a reasoned stand on every issue, negotiate in good faith, and exchange all necessary financial and child-related information.

By structuring the negotiations in this way, CL attorneys seek to avoid the acrimony that creeps into even relatively amicable divorce proceedings where parties do not meet face to face but instead communicate primarily through their lawyers. Inevitably, a certain degree of distortion results from messages as they pass through the filter of an advocate. When divorcing couples and their counsel conduct most of their discussions in person – collaboratively – disagreements and misunderstandings can be addressed immediately instead of festering.

Usually a series of four-way meetings is necessary in a CL case to resolve the panoply of issues that arise in the context of divorce: custody, parenting schedules, division of assets and liabilities, health insurance, educational expenses, taxes, alimony and child support. If experts are needed on an issue – e.g., a house appraisal, the value of a pension, or the wisdom of various parenting arrangements – the CL attorneys will usually recommend hiring a neutral expert, with the costs shared by the parties.

One of the important advantages of CL for both client and practitioner is that it promotes a team-based approach to the divorce process. Mental health professionals and financial advisors – whose advice is often needed but usually provided from the sidelines, if at all – can become part of the lawyer-client team, attend "four-way" meetings, and help participants address issues from a more holistic perspective.

In Massachusetts, and in several dozen areas throughout the United States, CL groups have formed for the purpose of training lawyers to use CL. The curriculum consists of communication skills, client-management skills, role plays, and discussion of legal, ethical, psychological, and practice-management issues. Members of the Collaborative Law Council in Massachusetts are listed on the organization’s web site: www.collaborativelawcouncil.org; CL groups around the country are listed at www.collabgroup.com. 

Disadvantages of Collaborative Law
Of course, not every lawyer is ready to embrace CL; many prefer the rigors of the courtroom. Likewise, not every case is suitable for CL. Divorce clients are not good candidates for CL if they are:

• Still in denial about the divorce;
• So angry at the other spouse that a four-way meeting would be unproductive;
• Unable to adhere to guidelines for collaborative communications (e.g., constantly interrupting or engaging in namecalling);
• Afraid of the other spouse because of his/her abusive or domineering behavior; or
• Unwilling to share all necessary information.

Even for appropriate clients, CL poses certain risks. First, CL can result in more expense if the CL process breaks down and both clients have to retain new lawyers. Second, without court involvement, either party to the divorce can delay the process by dragging out the negotiations, either intentionally or unintentionally. Third, court involvement offers greater protection from a spouse who intends to hide financial assets or secretly move them to a separate account; although CL attorneys typically require the clients to sign an agreement freezing the marital assets during the negotiations, violation of a court order usually results in harsher penalties and thus provides more of a deterrent to financial misconduct. 

Ethical Issues
The practice of CL also presents certain ethical questions. Some might wonder, for example, whether a lawyer can fulfill his/her obligation to represent a client "zealously," as required by the canons of legal ethics, if s/he has irrevocably agreed not to litigate on the client’s behalf. However, a lawyer and a client may determine what zealous advocacy means by spelling out in advance the ground rules for the lawyer’s representation of the client. (See commentary to Mass. Rule of Professional Conduct 1.2: "the terms upon which representation is undertaken may exclude specific objectives or means.") This is, of course, what British "solicitors," as distinct from "barristers," have been doing for centuries.

The crucial obligation for a CL attorney is to fully inform the client and provide him or her with an objective opinion of the advantages, and disadvantages, of CL. Even for those lawyers who believe strongly in the CL process, the canons of ethics require candid advice to the client concerning the risks associated with this form of practice. 

Comparison with Divorce Mediation
In recent years, divorce mediation has become the preferred option for couples seeking an amicable divorce. Mediation and CL are closely related phenomena, with a high degree of overlap among the practitioners who continue to practice law while also serving, either frequently or occasionally, as divorce mediators.

Mediators guide the negotiation process, help the divorcing couple to identify issues and options, and draft a marital settlement agreement (or, if the mediator is not a lawyer, a memorandum of understanding, which one of the parties’ lawyers turns into a formal agreement). What a mediator cannot do, however, is advise either of the parties: mediators are prohibited by their ethical codes from providing legal advice.

Accordingly, the parties in a mediation – which is ordinarily attended by the divorcing couple without their attorneys – often need coaching from their respective lawyers between mediation sessions. In some cases, this can be cumbersome and slow the negotiation process. When one spouse has greater experience in dealing with financial, real estate or tax issues than the other, mediating without counsel often compounds feelings of vulnerability in the less knowledgable spouse.Although mediators try to level the playing field by assuring a fair process and full sharing of information by the parties, most avoid directing the parties to a particular substantive outcome.

For all of these reasons, CL may be preferable to mediation in certain situations – especially where one or both of the parties want to have their counsel at their side when such issues as asset division, alimony, health insurance, estate planning, or child support are discussed. Mediation can also be used in conjunction with CL, by involving counsel in some or all of the mediation sessions. Or these two processes can be used, if necessary, consecutively – e.g., if mediation does not result in settlement, the parties could hire CL attorneys and thus give themselves another chance to resolve their dispute amicably.

Conclusion
Reducing the cost and bitterness associated with divorce is a priority not only for most divorcing couples but also for attorneys. The growing interest in CL has arisen primarily because a significant number of disgruntled family lawyers are seeking a way to avoid producing, in case after case, equally disgruntled clients.

Both statistics and anecdotal evidence show that the vast majority of CL cases succeed in producing an out-of-court settlement. This is also true, however, for cases that use neither CL nor mediation. But the critical advantages of CL (and mediation, in appropriate cases) are (a) the reduced psychological and financial costs for the parties and their children, and (b) the opportunity to use creative problem-solving, instead of adversarial negotiation and reluctant compromise, to craft solutions that more fully meet the parties’ fundamental interests.

Although CL may not be appropriate in every divorce, it widens the range of options for a divorcing couple seeking to end their marriage sanely and with a degree of civility. It also holds out the hope for lawyers sickened by the unnecessary but all too frequent viciousness of family law practice that law can one day be restored to its place as a helping profession.

[David A. Hoffman is a member of the Boston law firm Hill & Barlow where his practice is concentrated in family law, mediation, and arbitration. He is a member of the Board of the Collaborative Law Council, a member of the Massachusetts Supreme Judicial Court Standing Committee on Dispute Resolution, and co-author ofMassachusetts Alternative Dispute Resolution (1994). He can be reached at DHoffman@HillBarlow.com.] - [ top ]

Why Collaborative Law?

The most profound development in the legal profession since the Pound Conference convened in the early 70's and pointed the way to alternative methods of dispute resolution (ADR), is the rapidly growing field collaborative law or collaborative negotiation. So new is this development, that it there is no agreed-upon nomenclature to describe it. As we will discuss it in this article, collaborative law refers to an approach to dispute resolution in which the parties are represented by counsel of their own choosing, however the attorneys are chosen because they belong to an identified group or association and have made a commitment to represent their clients in reaching a settlement without resorting to any form of litigation or any adjudicatory procedure. Put another way, the role of the attorneys is to facilitate the development of a voluntary settlement without the threat or use of power. In the contrast to the traditional role of attorneys in prosecuting and defending legal causes of action, this is revolutionary.

Although a variety of different models are being developed by interested professionals all across the country, common characteristics link them together in a shared paradigm. The single most important of these characteristics is the commitment to achieve settlement without the use of any form of litigation. The most challenging and controversial aspect of this approach is the contractual obligation of the collaborative attorneys to withdraw from the case if any party chooses to abandon the collaborative law approach. This is disincentive to a party who enters the process without good faith. As this model works to establish itself as a meaningful response to the needs of the consuming public, it is hard for many to overcome the natural skepticism that comes from years of experience in the zero-sum game of adversarial negotiating. In reality, the commitment to withdraw if litigation breaks out is a check against the tendency for attorneys to resort to their well-developed adversarial skills when the going gets tough. As soon attorneys have gained the experience of completing numbers of collaborative cases, they will acquire the same high level of skill, confidence and creativity that previously garnered them reputations in the field of litigation. Only now these reputations will be for the ability to successfully resolve clients' problems in ways that are constructive, cost-effective, and maximizing in the outcome to each party.

Another major and distinguishing characteristic of the model is its focus on educating and empowering the client to become pro-active in all phases of the dispute resolution process, especially the settlement. This contrasts starkly with the typical relegation of the client to the caboose of the litigation express where the byzantine procedures of the legal process play such a dominant role in the path to trial or settlement that the client frequently is seen as getting in the way of the strategies of the attorney who is charged with responsibility for aggressively pursuing the interests of the same client.

From the clients' perspective, what does this process offer? Above all else, this approach guarantees the clients control over the process of resolving the dispute, control over the cost of the process and control over the outcome of the dispute. None of these guarantees is associated with the adjudicatory model of an attorney-client relationship. Client dissatisfaction with traditional legal procedures and the role of attorneys in our society is well established. The challenge to the legal profession is to find ways to respond to the evolving needs of the clients who are the consumers of the services that attorneys sell.

The collaborative approach begins with a focus on the needs and issues of the clients and keeps them connected to the process all the way to settlement. Although the traditional litigation model does not consciously attempt to separate the clients from the litigation, de facto separation is the predictable and inevitable outcome of a paradigm that is based on something other than client self-interest. The emphasis on the law as a justification for position-taking in the context of a competitive negotiating model, leads to a process based on strategic maneuvering that is the antithesis of cooperation and collaboration. The emphasis on legal procedures requires the education and experience of skilled attorney. As a result, most of the pre-settlement procedures of litigation are primarily focussed more on the role and activities of attorneys than of the clients. Predictably, the clients feel separated from the process and disconnected from anything that they might do to bring about a resolution.

With this focus on the role of the attorneys and their strategic decision-making responsibilities associated with prosecuting or defending the action, comes the expectation of the client that the attorney will produce the outcome that the client believes is fair and just. When that "fair and just" outcome is not achieved in the manner expected by the client (which is about 98% of the time), the client naturally holds the attorney responsible for the less than satisfactory result. What is so ironic about the adversary model is that the procedures which define it as an approach to dispute resolution, institutionalize the disconnection between the clients who are responsible for the dispute and who have the greatest potential for creatively solving the issues, from the actual process of preparing for settlement or resolution of the dispute.

From the attorneys' perspective, what does this process offer? Most importantly, the collaborative approach begins with clearly defining the roles of the client and counsel. The clients are responsible for the fact that they are in dispute and it is their responsibility to make decisions on mutually acceptable outcomes that resolve the dispute. The attorneys are responsible for developing the process that allows the clients to accomplish these objectives in the most effective manner possible. It is not the responsibility of the attorneys to resolve the dispute. The significance of this shift in the definition of the attorney-client relationship is profound and in the context of legal tradition, it is not an exaggeration to describe it as revolutionary. Freed from responsibility for the outcome and committed to developing the process, the tasks of the attorney become pragmatic, specific, and constructive. With the clients becoming more responsible for the outcome, the most effective work is done in face to face meetings so that the clients have the opportunity to grow into the responsibilities that rest with them. With the clients fully participating, the attorneys undertake the following process developments:

• Identification of the clients' respective needs, interests and issues;
• Development of process rules, agendas and time lines;
• Identification and exchange of all relevant information and documents;
• Development of all possible solutions to the issues without limiting the search to the law model;
• Educating the clients as to both sides of all the issues, all the settlement possibilities, the consequences of each particular outcome to each party and the needs and interests of each of the parties;
• Helping the parties develop settlement proposals built on addressing the greatest needs of each;
• Helping the parties negotiate their settlement proposals based on a commitment to achieving and outcome that is mutually acceptable and mutually beneficial to each party.

There are a number of attractive features that have attorneys forming their own collaborative law groups and marketing this new approach to dispute resolution:

• The frustration and futility of so many elements of the litigation approach.
• The stress and strain of the adversarial relationships that color daily practice of law as a profession.
• The inability to focus on positive, constructive and creative solutions to problems in the context of the litigation model.
• The client dissatisfaction with the relationship and outcome that are so frequently the by-product of that approach.
• The realization that the institutionalized procedures of litigation are not addressing the clients' needs nor are they providing a source of professional pride and satisfaction as much as they are creating stress and eventually, professional burnout.

While it is true that any one, individual attorney can apply collaborative practices to any case to good effect regardless of the level of awareness of opposing counsel, there is an exponential increase in value and effectiveness that comes from a community of attorneys forming an organized association of collaborative professionals and training together to develop their own protocols of practice and codes of conduct. The formation of a Collaborative Law group or association creates the ability to promote and market the types of services and the kinds of skills that the consuming public wants from the legal profession. It is a safe prediction that within a decade, we will have three mainstream dispute resolution choices: collaborative law, mediation and litigation. As professionals, attorneys will have the opportunity to define how they represent clients and clients will have the opportunity to select how they wish to engage the services of their attorney in resolving their disputes.

Information provided by: http://mediate.com/articles/rose.cfm - [ top ]

Civilized Divorce

I. There is More than One Way to Divorce
Few divorcing couples realize that there is a wide range of options to choose among for getting the necessary professional help in a divorce. At one end of the spectrum are those couples who can do it all themselves ("in propria persona," in legal terms), whether because there is little to disagree about, or because the couple is able to resolve differences without help. At the other end is the full-blown court battle--the dispute resolution process clients fear most, and rightly so. It costs more, emotionally and financially, than most people can afford to pay, and the results are rarely satisfying (regardless of who "wins") because of the lasting scars.

The spectrum in between these extremes includes many choices, among them:

... Mediation. The mediator is a trained neutral (usually a lawyer, mental health professional, or accountant) who helps the spouses negotiate an agreement directly between themselves, usually without built-in attorney participation. Independent attorneys advise each spouse, outside the mediation process.

..."Unbundling". The spouses, together or separately, act in effect as "general contractors," handling some parts of the divorce "in propria persona," bringing in lawyers, mediators, accountants, and other professional advisors only as an when needed.

...Collaborative Law. A new, highly-effective process in which each spouse hires a family lawyer committed to, and specially trained in, devising creative "win-win" agreements. Binding commitments good-faith negotiating, full disclosure, acknowledgment of the needs of the other party, protection of the children, and avoidance of court proceedings are made by all participants. Other professionals (accountants, child development specialists, appraisers, etc.) are retained jointly and work as neutrals.

...Conventional settlement. The traditional process whereby each spouse selects an attorney who advises, investigates, prepares for trial, and at some point--whether early in the case, or the courthouse steps--brings the case to resolution by settlement. The process can range from amicable to highly adversarial, and can be costly or inexpensive, speedy or slow, depending on both the attorneys and the spouses.

II. Choosing the Right Dispute Resolution Model Matters
Experience suggests that each divorcing spouse begins the divorce process with a given degree of openness to compromise and settlement. Selecting the dispute resolution process that best suits the couple's unique needs maximizes the likelihood of out-of-court settlement. Choosing a process which is a bad fit can result in failed negotiations, anger, and a more adversarial divorce than might have been necessary. Also, selecting a lawyer experienced in the chosen dispute resolution model and committed to the kind of representation of the client prefers can make the difference between amicable settlement and litigation.

Mediation works best when both spouses share a basic trust in one another's honesty, and are reasonably at peace with the fact of the divorce. If one spouse or the other is extremely angry, frightened, or otherwise distressed, mediation can be difficult. Similarly, a great disparity in bargaining power or financial sophistication can unbalance the mediation process beyond the ability of a neutral mediator to right it.

"Unbundling" can work well where the issues are not complicated, the atmosphere is reasonably friendly, and limited resources dictate handling as much as possible oneself. It is possible with this approach to get essential advice without turning over full responsibility to professionals whose services are too costly. Many, but no all, lawyers will consider providing "unbundled" advice if you ask. A clear agreement about what responsibilities are and are not being taken on by the professional is important.

Collaborative Law is the best choice for couples who share a commitment to settlement, have the ability to compromise and see the other's point of view, and want the advantages of specialist legal advice and problem-solving built into the settlement process. It can help spouses arrive at creative settlements even when the problems are complex. It is especially useful when spouses hesitate to negotiate face to face with only a neutral mediator in the room; collaborative negotiations are always conducted with a skilled advocate's active assistance. The settlement results can often be more creative than in other models, because neither lawyer succeeds in the job she or he was hired for unless both spouses' legitimate needs are met in the settlement.

III. How You Can Find the Help You Want
This Website provides access to many family lawyers, including lawyer-mediators. Local Bar Associations offer referral lists of family lawyers. The Association of Family and Conciliation Courts, in Madison, Wisconsin, provides information about mediators in all states. The California State Bar Association maintains a current list of attorneys who are certified specialists in family law.

Since Collaborative Law is a recent innovation, it is not yet available in all parts of the country. The author of this article can provide further information about collaborative law in Northern California and in Minnesota.

Once you know what kind of professional services you are interested in, interview several prospective lawyers and/or mediators. Ask for detailed information about training, experience, and philosophy. You may want to review a resume or curriculum vitae. And trust your instincts. Trust, comfort, and rapport are absolutely essential components of a successful attorney-client relationship.

Information provided by: Pauline H. Tesler, Attorney at Law - [ top ]