Collaborative Divorce? Don't Hold Your Breath.
In recent years, the idea of collaborative divorce has become more popular. The idea of working out all of the details related to child custody, alimony, and property division out of court does seem attractive. It's almost too good to be true. It's proponents claim it is a great alternative to the drawn out, painful, and costly divorces. It keeps the lawyers at bay because they agree to withdraw from representation if their clients cannot come to an agreement.
Supporters of collaborative divorce, however, seems to forget that people get divorced for a reason. In order to collaborate, people usually need to agree-meaning that that they still get along on some level. In many cases, one spouse has superior resources at his or her disposal and therefore may be able to dominate the process through the threat of litigation (which the other spouse can no longer afford). Some spouses are emotionally dominant and will use the process, unchecked by the fairness that a judge will give to the situation, in order to get what they want.
Collaborative divorce doesn't save money, either. Proponents claim that filing fees are waived. In the end, only a court of law can grant a divorce and someone still has to file a lawsuit with the requisite $167 filing fee (in North Carolina). The spouses are still paying their attorneys as they would in the traditional divorce case. If the process fails, they will have to retain new lawyers to litigate the matter. Again, at this point the dependent spouse may be out of resources to hire a new lawyer. This could be an incentive for the spouse in better financial position to go through the collaborative process in order to exhaust his or her opponent's resources (this, of course, would be unethical of his or her lawyer).
Collaborative divorce lawyers argue that they give their clients advantages by "not putting their lives in the hands of a judge." Clients in the traditional divorce case don't necessarily give up control to judges, either. Their attorneys still try to work things out and often do. It's only up to a judge if you go to trial-and most cases do not go to trial. Today's family courts refer cases to mediation and traditional lawyers use a variety of means of alternative dispute resolution. So the assumption that going to a traditional divorce lawyer equates to giving up control to a judge does not hold water.
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.
Supporters of collaborative divorce, however, seems to forget that people get divorced for a reason. In order to collaborate, people usually need to agree-meaning that that they still get along on some level. In many cases, one spouse has superior resources at his or her disposal and therefore may be able to dominate the process through the threat of litigation (which the other spouse can no longer afford). Some spouses are emotionally dominant and will use the process, unchecked by the fairness that a judge will give to the situation, in order to get what they want.
Collaborative divorce doesn't save money, either. Proponents claim that filing fees are waived. In the end, only a court of law can grant a divorce and someone still has to file a lawsuit with the requisite $167 filing fee (in North Carolina). The spouses are still paying their attorneys as they would in the traditional divorce case. If the process fails, they will have to retain new lawyers to litigate the matter. Again, at this point the dependent spouse may be out of resources to hire a new lawyer. This could be an incentive for the spouse in better financial position to go through the collaborative process in order to exhaust his or her opponent's resources (this, of course, would be unethical of his or her lawyer).
Collaborative divorce lawyers argue that they give their clients advantages by "not putting their lives in the hands of a judge." Clients in the traditional divorce case don't necessarily give up control to judges, either. Their attorneys still try to work things out and often do. It's only up to a judge if you go to trial-and most cases do not go to trial. Today's family courts refer cases to mediation and traditional lawyers use a variety of means of alternative dispute resolution. So the assumption that going to a traditional divorce lawyer equates to giving up control to a judge does not hold water.
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.
Labels: Collaborative Divorce
posted by Running With Plants at
9:10 PM
3 Comments:
While I agree with much of your sentiment, I think that collaborative divorces do have a place in one's divorce kit. Some tools, like litigation, are more appropriately suited to some couples rather than others. I think that litigation, while occassionaly lengthier than a collaborative divorce, is better in most cases. The discovery process is essential in synthezing the facts and focusing the parties on the real issues of the divorce. I am always hesitant to use a collaborative approach when my client is the only party that wishes for a more collaborative process. Moreover, I find that premature attempts at settlement, are frequently as costly, if not costlier, than taking the litigative steps set forth by the Rules of Court. Interestingly, I have found that attorneys who vehemently support collaborative divorce frequently know little of case law and attempt to force legally untenable positions in settlement negotiations. Thanks for this insightful article.
Interesting. I am a family lawyer in the UK.
I agree with your statement that "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 but don't agree that "The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached"
This seems to suggest that in a collaborative case, lawyers will do exactly what they would in a non-collaborative case, but will stick a different label on the package.
My experience is that that isn't the way it works - knowing that 2 lawyers in the room will not be involved in any subsequent court proceedings and that all discussions will remain privileged gives much greater freedom to discuss and explore a wider range of outcomes, and although it is correct that the parties don't have the input of the Judge (save, in my jurisdiction, that any settlement will still need to be approved by a Judge if the parties want it to be recorded as an Order, My experience is that the very open nature of the process means that both parties are aware all along of whether and to what extent their proposals are objectively fair.
I agree that not every case is suitable for Collaboration - but (based on my personal experience of both collaborative and non-collaborative practice) but I thick it does have benefits and lead to better outcomes for a significant proportion of clients.
I recall one case which both I, and my opposite number, had reservations about whether the case was suitable for the collaborative approach, as while both clients said they wanted to try it, they were very hostile. In our first joint meeting, there was a lot of 'sniping' and we (the lawyers) had to repeatedly intervene m remind them of the participation agreement they had signed up to, request 'time-out' to each calm our respective clients etc. I think we both came out of that meting expecting the process to break down. However, the second meeting was better, both parties became less aggressive because they could see that their ex was also being advised along similar lines that they were, and we ultimately ended up with a settlement which both of them accepted as fair in respect of finances, and in relation to the children we ended up with a very much more flexible and child-centered agreement than would have been possible had we gone to court.
I suspect that had we not gone down that route, that even with the best will in the world, and with both lawyers encouraging and working towards a agreed settlement, that because of the basic distrust and hostility towards each other that the clients had at the beginning, the likelihood is that we would have ended up in court.
(contined - sorry for such a long comment!)
I think the fact everything is done in one room around a table is hugely helpful, and the risk of having the expense of hiring new representatives if things cannot be resolved is a huge incentive to keep trying, rather than rushing off to court, when you hit a bump in the road.
I should say that I was initially somewhat sceptical and thought 'but we do all that already', when I first heard about Collaborative law, but having then started working with cases using this process I have come to see that it *is* different, and that it does offer advantages which aren't there in a traditional case, even where both lawyers concerned are working to avoid litigation.
So far as costs are concerned, I am in a different jurisdiction so it is hard to say how closely my experience compares to yours - I tend not to give cost as a reason for trying the Collaborative approach. My experience is that a Collaborative case is generally significantly less expensive than a case which is fully contested in court, but that costs are broadly similar to cases which are settled prior to a fully contested final hearing, so the advantages as I see it are more in giving the clients greater control and flexibility, and in reducing rather than increasing and crystallising the hostility and mistrust which exists between them.
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