Collaborative Divorce: Trend or Tool?
I was interested in the comment aired today on “The State We’re In” from a woman in Washington, D.C. (called “Liz” on the broadcast) who has found “collaborative” divorce to be not so collaborative.The State We’re In: Comment on “Collaborative” Divorce. The comment that struck me most forcefully was that she said she felt as if the client was the process, not her (or, for that matter, her husband). Also notable was the fact that “Liz” has spent $10,000.00 in one and one half months of the vaunted “process.”
I am a collaboratively trained attorney but I’ve only completed one collaborative divorce. I hope never to do another. At least not in the Washington metro area! The problem is not the process, the problem is the mindset of the attorneys who practice the process. As long as what matters to the lawyers is the profit, not the service, collaborative divorce will never be anything more than a trend in family law, rather than what it should be, a tool amongst a number of tools, to help resolve family crises.
I did not receive my training from the “touchy-feely” folks who insist that the only way the process can work is to bring in coaches and experts and force clients to sign agreements that require them to retain these so-called “experts” if the lawyers think they are needed. I was trained by a Canadian group who practices in a community of professionals that I fear those of us in materialistic, “we-have-all-the-answers and aren’t we great” ego-land will never be able to replicate.
In Alberta, Canada, the lawyers whose expertise is family law seem to have an inherent respect for one another and for the families they serve. They can collaborate because they have a community culture that doesn’t see the client walking through the door as another dollar sign for the profit margin or a tick on the old prestige meter, but as a complex system of painful and difficult issues and possible solutions. They can collaborate because they seem to be able to see their work as service, not as another step on the ladder of public acclaim. They can collaborate because they know that collaborative law is one tool in a toolkit of skills needed to help families.
It isn’t that way here and it probably never will be.
Collaborative law in the more litigious parts of the United States, in particular the 13 Original Colonies, has become a trend. If you’re cool, you’re collaborative. Today’s commentator, “Liz” didn’t mention the most devastating part of a collaborative agreement. That is, parties and their lawyers must agree that if either party decides litigation is the only way to resolve any part of the marital dispute, they must fire both collaborative attorneys and retain new counsel.
It would be nice if people were kind to one another. It would be nice if folks could be respectful to one another, no matter what their disagreements, but let’s face it, human nature doesn’t work that way, and no trend will force it to do so.
The fact is, collaborative divorce can be a platform for the economically superior spouse to run the other into the ground financially, force the adversary (that is, the spouse) to fire his or her lawyer, and then file for a litigated divorce with full confidence that the weak spouse will never be able to find the funds lost to the “collaborative” attorneys to hire competent counsel with a full toolkit of problem-resolution tools . . . including litigation.
I have found the best way to resolve divorce disputes is by working cooperatively with a respectful, cooperative opposing counsel whose ethics refuse to permit dishonesty and manipulation of the litigation system, with the litigation clock ticking away in the background, through lawyer-assisted mediation.
If that fails, well, the clock is still ticking, and if both attorneys are competent, they will be able to use the blunt instrument of litigation to ensure that the facts and the law are determined fairly by the court.
August 26th, 2009 at 7:51 am
Regardless of whether this is a father’s or mother’s rights blog, and as an attorney practicing in Massachusetts, I absolutely agree with the author’s dissection of the inherent problem with “collaborative divorce” as practiced. The motive force behind the “trend” and the problem it was intended to initially address was to cut the incredibly high costs, emotionally and financially, of resorting to litigation right off the bat if the parties were able to work “collaboratively” together, particularly where the parties have children.
I can’t entirely agree with your solution although I do see some merit to it. You are absolutely right that the fees collected by the attorneys, et. al., in a collaborative process are completely wasted if the parties have to start all over again with new attorneys who will be more than willing to further clean out the parties in litigation. I would suggest that we penalize the attorneys who initially sign up to work collaboratively by forcing them to fork over their fees if either they were themselves not intending to work collaboratively or failed to honestly ascertain whether their client was in good faith willing to work collaboratively. Alternatively, the party who fails to work collaboratively in good faith should pay the other’s fees for both the failed collaborative process and the resort to litigation.
The sad fact behind all of this is that no matter where one works or in what area, “just collecting the bucks” seems to be the workplace zeitgeist. I’ve worked as a trust administrator for a prominent national bank and the attitude was pretty much laissez-faire with regard to the ethics and what was most valued was taking and generating fees. You can also see it in the health care setting when a doctor prescribes a medicine that the patient comes in demanding because the patient saw it advertised on TV. Getting the money is the only value left in America, it appears. Sadly, it looks to me like we’re all becoming used car salesmen, no matter what our vocation.