I was on one of my family law listservs this morning, when the conversation quickly veered from the strangest things we've ever seen clients fighting over to bashing collaborative law. I can’t understand why lawyers are still bashing collaborative practice when it has been around for 19 years. I have been trained to practice Collaborative Law since 2002. I have been teaching collaborative practice through a training group AND under the auspices of Administrative Office of the Courts of Maryland since before 2008. I have taught collaborative practice as a law school class at the University of Maryland’s Francis King Carey School of Law, an ABA accredited law school, since 2014. I also note that 19 states (including DC) have passed versions of the Uniform Collaborative Law Act as either a statute or a rule, and two more have introduced the Act into their legislature. Collaboration is here to stay. Here are are some observations and misconceptions about collaborative practice:
1. “Only the lawyers who aren’t competent to try cases or litigate the old fashioned way do collaborative law.” As in any area, there are competent and incompetent Collaborative Law practitioners. My experience, especially here in Maryland where we’ve hit a tipping point in Collaborative practice, is that it is usually the more experienced and competent lawyers who practice this way.
2. The goal of Collaborative practice is to reach a durable acceptable agreement. That, I believe, is the same goal of litigated cases that settle and mediated cases. The type of agreement drafted in a collaborative case is no less detailed than any other agreement I draft in any other case. If the agreement stinks, that’s the quality of the lawyer and of their collaborative counterpart, not the process.
3. “Collaborative law takes the early, easy money.” What collaborative law does that no other process does on a regular basis is have a discussion and maybe more than one of where the money to pay for the process is coming from. Upfront and early. Unlike in other forms of representation, the goal is for the family to make decisions of what funds they have for their divorce and how to allocate them. They make that decision, unlike in traditional practice where the lawyers make that decision and for the most part we let the client figure out where to find the funds.
4. Collaboration with a little “c” is the same as Collaboration with a big “C”. It’s not. Actually, it’s nowhere close. I have been practicing family law for 30 years. I know most attorneys in town and I get along with most of them. We are collegial and friendly, if they are not actually friends of mine. When we get a case together that is not collaborative, we call each other, we talk about what documents we might need informally to get conversation started, AND we start talking about how the case should resolve. Because “business as usual” means that we know best about how to settle this case and we expect the clients follow our lead. If it were a bus, the attorney would be driving the bus, and the client would be a front row passenger, asking whether we can turn one way or the other, but not in charge. Because we’re driving the bus, we internalize when the journey does not end where we want it to end or takes a different route – we become invested in the outcome. As people first and attorneys second, that’s really easy to do.
In Collaborative cases, the client is driving the bus and we are in the front row with the map. They’re going to get us where we’re going, and we’re going to guide them there. They are in control of the outcome and we need to let it go. In all the years teaching this process, that is the hardest thing for traditionally trained lawyers and law students to do because we are trained to know the law and have the answers.
I’ll say one other thing on this point that I seen. We think we listen well. We stink at it because we listen to solve the problem and not to understand the problem and its underlying causes and emotions. Often in the small c collaborative cases, we think we are solving the problem but we’re solving either the wrong problem or only part of the problem because we stopped really listening to the client when the problem and solution became clear to us. I see it in my law school class as well as in training with practicing attorneys – we all jump to the solution. (And a big "thank you" to Suzy Eckstein for the bus driver analogy. It's my favorite)
5. “The parties waive the right to use information gathered in the collaborative process at trial.” That’s not true. The process, like mediation, is a confidential process, either by contract or by law. That means that any information created within the process is confidential and not to be used in court. As a mediator, you don’t get to use my notes. In Collaboration, you don’t get to use schedules and compilations created as part of the process. The information underlying those documents, as well as other information that could be investigated to lead to other pieces of evidentiary proof is always available to use outside the process. It is what it is, and that’s why in states where adultery is a bar to alimony, you have to have a long talk with your client about whether to use collaborative: the statement in the process is confidential, but the dirt the other spouse digs up outside the process after finding out this little tidbit is not. This is the same in any process.
6. Collaborative Law recognizes that most people want to do the right thing. Most people involved in a dispute don’t have all the information to know how to do that. Parents think all kinds of things when it comes to their children; some of them are downright harmful, but many parents agree to these things because they don’t know any better, not because it is the right decision. In collaborative practice, the goal is to empower the clients to make their own decisions by providing them information and support and helping them reality test the options they create. Like Gary Borger said, that’s why we have child specialists to provide the clients with information about child development and information about their own children’s abilities to comprehend what is going on and handle whatever arrangements the parents decide. Also, as we all know, not only does emotion get in the way, but also exacerbates the underlying communication issues the clients have. A divorce coach or coaches help them develop strategies and skills to both negotiate for themselves and to communicate effectively with each other moving forward. Collaborative helps give them the tools and foundations to solve future problems which supporting and advising them to solve their present ones.
7. In Collaborative practice, we work hard to ensure that client not only understands the decision made, but also the why. How many times do we in traditional models have clients come to us to modify agreements and their understanding of the agreement is 180 degrees from what the agreement really says? I see it with my parent coordination clients all the time. You think they understand, and they think they understand, but they don’t really. In collaboration, we discuss the whys and whats of each decision, and check in again and again to make sure our word smithing matches their intentions.
My colleague here in the Trenches, Doug Sanderson (who trained with me in 2002) asked me to address the one issue that seems to get the most negative traction – attorney disqualification if the collaborative process does not result in a comprehensive agreement. What I like about teaching the subject fairly frequently is that it forces me to think about the whys of Collaborative practice, as much as the hows. I believe disqualification is essential to the Collaborative process for a number of reasons:
1. The client’s instructions and objectives. The client’s instructions, in writing, to the attorney are to help them arrive at a mutually agreeable, durable agreement that meets each of their needs and the needs of their family (or other parties affected by the agreement ) moving forward. That instruction is inconsistent with the client’s instruction to the attorney in any other process, which is to represent their position, which may not meet the needs of the other party or the family moving forward.
2. Waiver of privilege and protection of confidentiality. The process itself is confidential and by participating in the process, the client agrees to waive attorney/client privilege within the process. There really is no way to put that cat back into the bag if the process is unsuccessful. Also, by statute, rule and contract, either party may prevent disclosure of a collaborative communication.
3. The difference in the role. The attorney’s role in Collaboration is for settlement only. If I am representing a client in mediation or lawyer negotiation, my role is not simply settlement. I am aware that whatever happens in those processes, I can take the matter to court. There is always that coercive threat. That difference in role means that I am not as quick to terminate the process when the going gets tough, but rather hunker down and try to find another way around the impasse; the client shares that interest because to do otherwise means engaging other counsel.
4. Maintaining the focus. Collaborative conversations are not positional bargaining. In fact, they are diametrically opposed to it. I keep something in my back pocket if I know I might be going to trial in a matter, which is something I don’t do if I am Collaborating – because transparency is one of the hallmarks of the process, I am required to instruct my client to reveal all information which may be pertinent to a decision, and also no one can take advantage of another’s mistake of law or fact. One of the hallmarks of the Collaborative process is the ability to reach resolutions that are creative, out of the box and not something a court would necessarily do. Collaborative’s sole focus is on helping the parties create a durable acceptable agreement that meets the needs of all parties and those affected by the agreement. Requiring disqualification maintains that focus without distraction.
5. My friends here in the Trenches, Doug Sanderson and Bruce Avery, added the following points:
From Doug: "As the spouses head down the road of Collaborative divorce, they will invest not only time but also money, which in the vast majority of cases is a limited resource for both, and certainly for the family. That prospective investment in Collaborative divorce, paired with the prospect of needing to hire a different attorney (and other professionals if/as needed) if the Collaborative process fails and the spouses need to pursue a litigation process, is explained to the client up front as being another positive reason why this process can work better, on top of all the reasons you’ve listed. It may sound counterintuitive to some, but I suggest, and have observed, that it constitutes a “buy-in” to the Collaborative process that helps keep clients in it." And from Bruce: "Another side to disqualification is it takes away any financial incentive for the attorney to throw the case into litigation. Not that anyone on this listserv would do this, but litigation earns me a lot more money that collaborative (or anything else). There are those who I think do push things into litigation that don't need to go there to the economic benefit of the attorney."
I could go on and on, and some of you probably think I have. Let me close with a few thoughts. First, Collaboration, like mediation and litigation is simply one method of dispute resolution. It doesn’t work for everyone and it is not appropriate for everyone, attorneys and clients alike. Second, those of us who work in the Trenches are required by our ethics rules, and if we are talking Collaboration in a state which has passed the Uniform Collaborative Law Act, by statute, to obtain the client’s informed consent to a course of action. I am at a loss at how folks who have not taken the time to understand Collaboration can actually do that. I don’t care whether those toiling in the Trenches like Collaboration or think it’s some new age jumbo jumbo, I believe we have a duty to discuss it with our clients as part of their process choice. Here in the Trenches.