Thursday, January 14, 2010

Collaborative Divorce - A Somewhat Contrarian View

Eastern North Carolina Divorce's Collaborative Divorce? Don't Hold Your Breath. provides a counterpoise (sort of) to my Should Indiana Have a Statute Promoting Collaborative Divorce? and Explaining Collaborative Divorce.

Traditional divorce already has many of the supposed benefits of collaborative divorce. Attorneys do talk to each other, do realize that it is better for their clients (and their children) to work things out, and really do try to reach agreements for their clients. The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached. And when that happens, clients have to go through the additional expense of hiring new lawyers and paying them for work that their previous lawyers already did.

To this author, this approach assumes that divorce attorneys try to avoid settling cases so that they can pad billable hours through litigation. I don't subscribe to this cynical approach. My experience is that most attorneys represent their clients interests zealously and honestly. Sometimes this includes going to trial; these cases would have to go to trial even had they begun in the collaborative process.

The only difference is that their clients had to hire two attorneys.
My views probably hew closer to my North Carolina colleague. Settlemetn provides a better resolution for more cases than going to court. Most lawyers know lawyers will work to settle a case than not. I have two rather long pieces on knowing when to fight and when not to here and here.

However, I think every family law attorney knows that there are lawyers who will never settle - they have made their reputations as fearless fighters. Clients think that their fees are the price of admission to litigation. These two mindsets hinder the family law process.

About the fearless fighter type, I recall a hearing in 2008 when a judge lectured opposing counsel and myself with surely this could have been settled by my calling opposing counsel. Other attorney when told about this will laugh. They know that the aottrney's business model is based on not settling cases and they never return calls.

Clients need to realize that the great amount of fees comes from not being in court but in preparing for court - the witness and exhibit preparation, the discovery process. One can invest very heavily in a case that has not yet seen a courtroom. Cutting short the trial preparation need seems to me the economic bonus to the client side of the equation.

Requiring collaborative law ought not remove the lawyer's responsibility to seek settlement of the case. I agree wholeheartedly with my North Carolina colleague on that point.

I see educating about collaborative law as educating about the legal system. The general public needs to understand that their images of a glorious legal battle in a courtroom are wrong. Those images belong on television. They need to understand that what they are paying for is reaching their goals in a case - not merely going into a courtroom.


Marjorie said...

Interesting. I am a family lawyer parcticing in the UK, and am a Collaborative lawyer although at present, this is only a relatively small part of my practice.

I don't think the Collaborative method will ever wholly replace traditional , litigation based method in family cases, as you say, there are some people (both lawyers and clients) who will never settle. There are also some cases where the Collaborative process won't be suitable (where there is Domestic Abuse for example)
However, I think those who assume that the collaborative process is just what good lawyers already do, under a different name, are mistaken.

I don't thank anyone can, or should, be required to use the Collaborative process, but I do think it should be offered,and that individuals who seek to apply to court without having explored other options such as Collaborative Family Law, Mediation or negotiation should operhaps be more robustly advised by their lawyers as to whether this is appropriate.

Perhaps some best practie guidelines for lawyers, ratehr than an out-right requirement, would be in order?

PS - as a matter of interest, am I right in thinking you are not yourself a Collaborative lawyer? If not, have you considered adding it as another string to your bow?

Sam Hasler said...

Thank you for the comment. I suppose that I do not fall under the heading of collaborative lawyer but there is a very strong mindset in my area that settlement is better than litigation. Since there is a more precise definition of collaborative lawyer, I shy away from calling myself one. It is fight if we must, settle as much as possible.

I think collaborative law has a great attraction for lawyers. We know the costs of litigation. What the general public knows and should know is a different story (in my opinion).

I am not so keen on a statute (what legislature cannot botch a perfectly8 good idea?), the guidelines seem a good idea. I see only quibble with guidelines, and that goes back to the general public not understanding what they are getting from collaborative law,