Making Sense of Collaborative Law — Divorce and Conflict Resolution
Content courtesy of Mediate.com, edited by Attorneys and Mediators Papa and Roberts
To most lawyers, including me, on the first hearing 'collaborative law' sounds like a contradiction in terms. Attorneys go to court to find out who's right and who's wrong, so what's to collaborate about? Or if people are truly collaborating, why should they need to resort to law at all?
What is 'collaborative law' anyway? In essence, it is a process of working through a legal dispute, usually a domestic matter, in which the parties and their counsel agree not to resort to the court system. Their so-called 'participation agreement' includes rules of engagement whereby the attorneys will
- Cooperate by providing disclosure and discovery
- Model a commitment to honesty, dignified behavior, and mutual respect
- Neither prepare nor file any document with the court except by mutual agreement
Similarly, the parties agree
- Not to request or expect their attorneys to advance unethical or illegal positions
- To fully disclose to their attorneys and each other of all pertinent facts
- To communicate respectfully and constructively with each other, discussing settlement only in conference - (not at unannounced times) by telephone or appearances.
The common commitment is cemented by the attorneys' promise that if they can't reach a negotiated solution, both will withdraw so the parties may hire other counsel to litigate their case.
Collaborative Law is a movement concentrated in the domestic field that grew from one burned-out divorce attorney's cry, "There just must be a better way!" The various collaborative divorce models developing across the country have in common a 'team approach' whereby each side may have a therapist or coach as well as an attorney, and one financial advisor may act as a consultant for both. But what gives the process its unique dynamic is the attorneys' commitment to put down some of their professional weapons.
Do you have a question about Collaborative Law? If you are in the Nashville area, submit your inquiry to Attorney Benjamin Papa.Does Collaborative Law Work, and (if so) Why?
The Structured Four-Way Commitment
Achieving the goal within the Collaborative Law contract means not going to court. The requirement that all attorneys be disqualified in the event of a breakdown assures that participating counsel are motivated to ensure the process succeeds. Thus, the diplomat's skills become as important as the warrior's in 'winning' the case. Openness, candor, and cooperation replace guardedness and secrecy as the techniques most likely to achieve success. Walking out in frustration, or provoking the other side to do so, ceases to be a viable tactic.
Setting up collaborative representation in a divorce or separation is an educational process culminating in a set of agreements about how the two parties and their attorneys work together. First one's client needs to hear about the basics of divorce law, the dispute-resolution process, and the range of an attorney's services from which he/she may select.. The collaborative attorney retains responsibility for solving the problem firmly on the client's shoulders rather than proposing successive solutions. She/he does help the client identify his substantive goals and priorities, and when she/he is confident that the client comprehends the choices before him/her, he/she signs a Collaborative Law retainer agreement. Together they plan how they may draw the other party into the collaborative mode. The first attorney will suggest the collaborative model to the other attorney, given one has been identified, and if necessary will provide information. If not, she/he will write and propose the model directly to the second spouse, providing a list of counsel trained in the process. While previous training is beneficial, the basics of Collaborative Law may be learned in the context of one's first case. Once both parties and their attorneys have their questions answered and are ready to sign, usually they will set up their first four-way meeting to execute the basic agreement to utilize 'Collaborative Law.'
The agenda at the first 'four-way session' may include discussions about the employment of neutral experts regarding the finances and psychological issues regarding the children. The attorneys should already have agreed to review any interim problems and identify 'hot-buttons,' yet the primary function of this meeting is to install a collaborative 'container' around the parties and their issues, including a schedule of future meetings. Each side usually conducts a short debriefing session, to review what worked and what didn't, after which the process should be ready to move into the phase where real work gets accomplished.
Even without court rules setting discovery deadlines, documents still are produced because no one is being made to comply by pressure from an opponent. Instead of a financial expert's time being consumed in deposition defending one side's view of the situation, he/she can be running 'what-if' projections on alternative settlement numbers for both parties. Effective cooperation, rather than the fear of what might happen in court, propels the process because if it stalls and produces a loss of trust, both teams will have failed.Taking a Team Approach
Collaborative Law, as practiced in Georgia, provides equal emphasis on the financial and emotional aspects of divorce, as well as the legal process with which attorneys are most comfortable. Some divorce attorneys are satisfied with their own expertise in all such areas, and may even view other professionals as threatening their control of a case. Yet, for other attorneys, sending the client to a communications skills coach or child development specialist is a relief from burdens they feel less-equipped to handle.
Financial planners, using modern software to analyze the long-range impacts of alternative support arrangements, may help the parties determine the most tax-efficient solutions, while satisfying both the paying and receiving spouse that they will work as projected. The collaborative model encourages parties to hire a single expert to evaluate property, instead of paying two to do the same work and defend their disparate findings.
The 'expanded professional team approach' offers clients a coordinated, consistent and efficient group of professionals who know how to work together effectively to serve the interests of the re-structured post-divorce family. In the arena of 'free trade' versus 'protectionism,' it also expands the overall professional services pie by encouraging referrals among the disciplines.Success is Measured Differently
Our legal system depends on the notion that two or more professional adversaries representing the parties to a dispute will draw forth all relevant information to the contest in the process of advocating their client's best position, thereby allowing the decision-maker to determine the 'truth' and to make the best choices. This process assumes that the only real interest of the parties is to achieve victory. In that regard, it reflects the attitude that upon the decision to divorce, the marital relationship becomes merely a struggle for power or property where the participants must compete to 'win' the power and its associated products.
While 'hardball' trial lawyers often dismiss the notion of law as a 'healing profession,' it remains true that every encounter clients have with us or the courts tends either to enhance or deter healing. Particularly this is true in the stressful passage of a divorce. Ignoring the scarring impact of a litigated divorce on the parties doesn't diminish the damage done.
Collaborative Law goes beyond allocating interests in the 'marital' and 'separate' estates, to value and preserve a third, invisible 'relational' estate. This is a range of interests vitally important to clients, yet usually treated as inevitable collateral damage in highly adversarial divorce proceedings. It includes the children's relationships with the extended family of the parents, the web of friendships the spouses shared previously, their ability to parent effectively after the divorce, and to meet comfortably at future life events such as graduations, marriages, births and funerals. It also includes the ability of each client to look back on his/ her own conduct during the divorce with a sense of dignity. Divorce achieved collaboratively preserves the clients' integrity that arises from valuing what was positive in the marriage as a chapter in their life histories. It enables them to feel that under the greatest pressure, they behaved consistently with deeply-held religious and ethical values.FAQ-Most Frequently Asked Questions About Collaborative Law
What About an Attorney's Duty of Zealous Representation?
Every attorney recalls the concept of 'zealous representation' from law school, yet may forget its true place in the hierarchy of his/her duties. It certainly does not oblige him/her to use any and all means to achieve everything his/her client may demand during the course of a representation, or to fight for every last dollar on the table. Indeed, no one of the functions of an attorney, advisor, negotiator, intermediary and advocate has primacy over the others.
'As advocate,' states the Preamble to the Georgia Rules of Professional Conduct, an attorney zealously asserts the client's position under the rules of the adversarial system." As negotiator, it also states, "a lawyer seeks a result advantageous to the client, but consistent with the requirements of honest dealing with others." These Rules encourage attorney/ client to discuss and agree on the goals of the representation and the means used to achieve them. That ethical dialogue ultimately produces a set of objectives quite different from what the client brought to her first meeting with counsel.
How different are objectives in Collaborative Law?
Collaborative Law is included in a continuing proliferation of dispute resolution alternatives, specifically the 'retainer for limited purposes' or 'unbundled legal services. In California, where the second concept originated, a well-reasoned opinion says that it is ethical for an attorney to ghost-write pleadings and offer legal advice to a client without appearing as the counsel of record, or even disclosing his/her role to the court. Where a retainer agreement excludes the pursuit of rights and remedies that a court may provide, the cautious lawyer will make sure the client understands and accepts the risks associated with such limitations. According to the California opinion, he/she may still have a duty to alert the client to legal issues which are reasonably obvious, even though they fall outside the scope of retention. With respect to such problems he/she would be obligated to advise a client about his/her rights, the alternatives available under these circumstances, the consequences of each, their cost and the likelihood of success.
Under Georgia law, absent any other agreement an attorney has apparent authority as to procedural matters, yet is the client who decides issues that affect his/her substantive rights, including the settlement of his/her claim. Accordingly, though the Collaborative Law retainer agreement alters the customary allocation of authority on procedural issues, it changes virtually nothing about substantive matters. Further, though the attorney's services may be limited, they must nonetheless be competently provided, i.e. with the legal knowledge, skill, and thoroughness reasonably necessary for representation. The protections of the attorney/client privilege, and the attorney's other duties of loyalty, diligence, and confidentiality are likewise unaffected.
Does Collaborative Law 'Protect the Client' (and the Attorney Against a Malpractice Claim)?
Answering the malpractice question requires us to first consider how much 'protection' the divorce client enjoys under prevailing practice. We can start by noting that there is rarely a domestic outcome that hits every one of the client's original targets. The conventional wisdom of the past states that if either spouse left the courthouse happy, the other one must have received a bad deal. Depending on the facts of the case, the standard by which most family attorneys would expect to have their work judged, is that the settlement should be economically workable, with no unhappy surprises or unforeseen tax consequences, and should provide both spouses the chance to be good parents to the children. Being a competitive exercise, litigation proceeds by selective disclosure as well as tactical maneuver, mobilizing evidence and witnesses favorable to one side and discrediting the ones favorable to the other. Particularly where clients are vulnerable as in divorce, the warrior's first instincts are to 'throw up a perimeter' and fire off heavy rhetoric or onerous discovery to let the other side know they're in for a fight. We hear the client groan, but persuade him/her that it's for his/her own 'protection,' The tone thus having been set, the other side responds in kind. Differences between the parties are emphasized to eclipse areas of agreement. To the first offer of settlement the 'stout-hearted' advocate may say, perhaps over-protectively, "I couldn't let my client agree to that."
The attorney's instinct to prove her/his zeal by adopting the client's positions and attitudes often leads to unrealistic expectations. Reality may not settle in until trial looms or the liquid assets that may have provided a readjustment cushion have been consumed in the struggle. Hasty settlement on the courthouse steps undermines the sense of control within the client, and increases the risk of drafting errors. When the terms are less favorable than the client was prepared for, he/she may be subject to either 'buyer's' or 'seller's remorse'. Further, the high emotions and unpredictable results of a jury trial carry their own risks of dissatisfaction. A suit for the higher fees incurred only invites a counterclaim for malpractice.
Removing the element of combat naturally disconcerts attorneys who have not discovered other ways to resolve a clash of interests. Being accomplished in the use of the Civil Practice Act to ferret out discoverable information or to preclude untimely claims, one may feel unprotected or helpless without those weapons in hand. Yet are they necessary to provide a client the essential benefits of legal representation? The Collaborative Law approach recognizes that in domestic matters, the client often has sufficient knowledge of the essential facts, or sufficient trust in the other party, for instance, to proceed without court-supervised discovery. Further, expertly hidden assets may well not be discoverable with any reasonable degree of effort. So little if any value may be relinquished by renouncing the tools of formal discovery.
Unlike mediation without attorney assistance, clients in Collaborative Law can have as much hand-holding as they desire. They receive the benefit of the attorney's investigative and analytical skills in detecting any possible fraud as the facts are revealed. They receive sound real-time advice in setting goals and skilled help in negotiating. It all proceeds at a pace not dictated by the 'hurry up and wait' demands of a court calendar, so the parties have time to test each other's proposals, and to get comfortable with their offer before signing it. The main difference from litigation is that the attorney's advocacy is focused on persuading the spouse rather than a judge.
Collaborative Law Doesn't Work When...
Collaborative Law cannot work with parties who have significant psychiatric problems, or if a pattern of domestic violence exists or with people who are fundamentally dishonest, or unable or unwilling to follow through on their commitments. Yet for parties who are willing to invest in the process, it offers a better outcome than litigation, and accordingly more real protection for both client and attorney.
Don't Clients Hire Fighters Not Settlers?
An Attorney who bills himself/herself as a fighter is likely to attract clients who want to fight. When one's only tool is a hammer, everything appears as a nail. Yet, in the writer's experience, one who casts oneself as a settler of disputes attracts a remarkable number of callers who fear becoming enmeshed in litigation more than they fear getting less than top dollar at trial.
Some are looking for an easy way out. They want the mediator to make the other spouse accept their views, and don't understand that he/she can't just tell the couple how to resolve their issues. That opposite spouse may be tempted to use mediation yet feels vulnerable even with counsel at his/her elbow, assuming he/she can find a lawyer willing to take such a mere advisory role. These people share a belief that hiring an attorney will mean losing control of their cases and that the attorneys will delay resolution by inflaming feelings. Many can afford to pay for excellent counsel but stumble around on bad advice because they can't overcome their 'gut-level dislike' of attorneys, in general. Collaborative Law is a framework by which this potential clientele can be served. Since the first Georgia Collaborative Law training in October of 2000, 83 attorneys and 53 other professionals have taken the class. Public awareness has grown quickly from stories on ABC-TV and Fox News, and Collaborative Law has been regularly featured in the past year at family law and ADR seminars, in Georgia and across the nation. The more Collaborative Law is understood and promoted as an option by the mainstream domestic bar, rather than draw away existing business it stands to attract more.
Collaborative Law Conclusion - In a Nutshell
Collaborative Law is a genuinely new paradigm for the legal resolution of individual disputes. It has specific advantages in family matters as a structure in which attorneys can help divorcing spouses find genuine 'win-win' solutions with all the protections of conventional representation.
Attorney and Mediator Benjamin Papa is available for divorce and family law consultations in the Nashville, Tennessee area. Submit an inquiry to Attorney Papa.