Collaborative Divorce: I Remain Unconvinced
Published to: Alimony, Children, Custody, divorce: mediation; collaborative divorce, equitable distribution, negotiation, property settlement agreement
on May 14, 2018 6:28 pm
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Here is a Huffpost article and scholarly discussion of “Collaborative Divorce”. It left me cold with the terms “psychotherapy” and “psychotherapists”. Sorry, but I’m in the trenches, trying to save clients and their children. Cannot see that adding a layer to this often contentious cake will be an improvement. Anyone who has read my stuff, however, knows I am not a Luddite on this subject.
I worry that a person with only collaboration in their toolbox can’t “build the big stuff”.
Susan Jacoby, intellectual, writer, college professor, and author of The Age of American Unreason would retch to see me write, “Here is Wikipedia’s description of Collaborative Divorce.”:
“Collaborative law, also known as collaborative practice, divorce or family law, is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a “participation agreement”) binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation. (emphasis in red added.)
The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.”
I hope you’ll not click the hyperlinks yet. They are for background. I’ll try to be concise:
1. The “Achilles Heel” of collaborative divorce has three components:
a. The lawyer who may have thousands of dollars wrapped up in pleading and preparing his case for the collaborative session (which should in my opinion be the same work as preparing for a mediation), must give up the case if the collaborative negotiations fail! More on this below.
b. The collaborative lawyer will become irrelevant if the collaboration fails. It is his or her work upon which the litigator must build if the case has to be tried! Thus the foundation for a well-tried case may be shaky. And it will cost A LOT to pay two lawyers to prepare. A good mediation always prepares us for trail. Cannot imagine trying a case in which I didn’t attend the mediation.
c. Collaborative Divorce, even if it is a sound idea, will take a “legal generation”, 10 years or more, to convince half of of WV family lawyers and judges to use it. That’s a lifetime in today’s era of “accelerating change”. Surprise! I like my ideas better.
2. We have been doing the core parts of this process, at reasonable cost, in North Central WV (thanks largely to Family Court Judge Robert Reed Sowa) for at least ten years!
3. A simple divorce can be negotiated , often with a mediator.
3. But what of the tough cases? Bitter enmity, jealousy, abuse, alcohol, drugs, or MONEY? See below my illustrative chart of the dynamics of a serious mediated divorce case.
4. This pyramid is a chart I show my clients of how to gather the mass of information, e-mails, bills, accounts, texts, photos, property lists, budgets, witnesses, exhibits, issues, and questions”:
5. Contrary to the simple, linear, model of a mediation where there is one major issue, “How much money will the insurance company pay my client, here below is my model for mediation in a hotly contest or emotional divorce:
6. Why is it tragic to have the lawyers who almost but not quite fail in a collaborative divorce to hunker down to try the case? It’s simple:
Note: it takes real skill to distill hundreds or thousands of facts into a 5 minute (oral) or 30 minute (written) summary.
And here are some of the issues that mediation and collaborative divorce need to deal with:
a. Building rapport and trust between lawyer and client is tough. Especially when I represent the disadvantaged party, in size, money, or history of abuse, that client, in my humble opinion must know that rational, reasonable, thoughtful, compassionate lawyer who helped her/him through the collaborative process, CAN KICK THE OTHER SIDE’S ASS. A good lawyer can empower the otherwise weaker party.
b. And the other side must know it too. If there is little bit of “wild man” in you; if the other side knows you have a reputation for trying cases hard and well; if they have heard that in some cases, the bill is thrown out the window (don’t tell a soul that one); and that they may win and still have to fight an appeal for the next two years, there is a better chance that case will settle.
c. I can envision the scenario where one party has money, perhaps from a wealthy paramour or well to do family, and the other has very little. She borrowed, begged, or stole funds and gambled on a successful collaboration. Now it is on the brink of failure, and she has to say goodbye to the trusted advisor and turn to an expensive “Have (legal) Gun Will Travel” “hired gun” who will have to learn everything the first lawyer was paid to organize and learn.
d. So, what will she/he do? “Cave” of course! Accept something she does not want, not because it is a fair deal but because the collaborators, the counselors, and even the Court, by sanctioning such a procedure, are pressuring her/him to do.
And, believe it or not, lawyers are people too. They may be trained to negotiate and collaborate, but they simply may not be able to communicate. Do they now bring in a mediator as a buffer? Why not just mediate? Mediation has a high success rate when done well.
I do not have time or space to reiterate my solutions, but I suggest you search my blog for “mediation”, “unbundled legal services”, “guardian ad litem”, “divorce”, “parenting plan” or “property settlement agreement” or “irreconcilable differences”.
I will keep an open mind and learn more, but to say I am skeptical is an understatement.
This post was written by Burton Hunter