Collaborative Law: Is It Enough, Or Must We Have More?

The following post, in draft form, was the second half of my last post, “Conundrum…..#1”. That post discusses the “The “Family Court Jurisdiction To Restrict Contact Between Parties Act”, WV Code Sec. 51-2A-2a. Since that statute is only a small part of the solution, I want to touch on four areas which are in desperate need of revision and innovation in WV family law. They are: mediation, unbundling of legal services, dealing with “domestic squabbles”, and collaborative divorce.

Tied to these subjects are “access to justice” for poor and middle income persons and the ability of small town and small firm lawyers to adapt to “accelerating change” and to make a living. Related to the latter are issues of lawyer addiction/depression, mental health, stress, and quality of life.

Below are many links to my blog articles addressing these issues:

Recently “The West Virginia Lawyer”, the magazine of the West Virginia State Bar, published a well-written article on the subject of “Collaborative Law”. I love the idea, hope it is implemented in West Virginia, and wish its advocates well.

Here it is: Collaborative.Practice.Takes.Root.in.WV.9.17.18

I have already expressed one major reservation, for my clients, who are generally rural citizens of limited financial means. As described in The WV Lawyer, a collaborate divorce contract contains what looks to me like “a poison pill”, don’t case in to a better financed spouse, and you are going to lose your lawyer! And, you are going to pay a second lawyer to learn everything that your “collaborative” lawyer knew at the time they dropped you. When, talk about walking away when a client needs you. To me, collaborative divorce will work only for parties who fully understand the ramifications and can afford the cost of a reset if it fails. I don’t think 10% of my cases are a fit for collaborative divorce.

I believe that unless we incorporate “collaborative law” with the best thinking on “unbundled legal services”, “legal coaching”, “access to justice”, and “family law mediation”, collaborative law will be a single faceted, one-size-fits-all, remedy that will be of virtually no use to my clientele and colleagues. It will be trendy, but how will it play in Welch, Logan, or Thomas? Not so well I think.

Just like Magistrate Courts have only the domestic violence statute as a family law tool, it won’t be enough to have only collaborative divorce as The Family Courts’ tool. My point is WE NEED A BETTER TOOL KIT!

A fair example is that I do not take any trip, do any mowing, or take on any task, unless I have my Leatherman tool; not just the micro, but the $79 version which contains a dozen tools. Family lawyers in West Virginia need a “Family Law Leatherman Multi-purpose Tool”.

Collaborative divorce will be fine for 20% of litigants in the more urban counties, and eventually a bit more, once lawyers are trained in it, What about the other 80%, including drug, alcohol, physical, psychological, and sexual abuse? Where does that fit in?

Who is going to train a generation of collaborative lawyers when family law mediation has been around 15-20 years and remains, in most of the State, in “The  (Mediation) Dark Ages“.

Two of my  State Bar committee chairs told me, “The judges will never approve it.” Of course not! They have vested interests in the way things are now! As a group, they don’t want to give up power! Judges do not mediate cases. They do not see what happens in a collaborative divorce, and most have not served as mediator or “coach” for unrepresented parties. Most, being older, have seen the law change at a glacial pace compared to our society!

Blessed are the judges who actually notice when their lawyers are collaborators, innovators, strivers for justice, and candid about their own clients’ limitations. Those judges are not afraid to send us to mediation, to encourage settlement discussions, to appoint committed guardians ad litem (children’s lawyers), and to take time to try the cases that can’t be settled.

My clients max out their credit card, turn to parents, friends, or family, get an advance from their employer, and that is pretty much all the money they’re going to get. So, I try to set retainers that will cover their fees  and costs in at least half the cases.

Of course, when I have a client with an excellent job, I can take that retainer in two or three pieces, but think of the person on SSI with income of $700 a month, or on minimum-wage clearing $1300-$1400 a month facing a bill from me of $3000 and knowing they will have to send me $100 each month for almost 3 years! Eventually they stop sending the check.

If a client feels pressured to settle now at a mediation knowing that if mediation fails their lawyer will stay with them through trial, just imagine the pressure on a person who hears from her lawyer, “Settle this case now, or I quit!”

Additionally, imagine the person whose collaborative negotiations have failed, whose lawyer just quit. She must come up with money so a new lawyer can repeat the work of the prior lawyer and also try the case. Some people can afford that; most WV litigants cannot.

What makes sense is to have the complete toolkit, to do a good intake, to identify the proper tool for the job. Then the parties can a. proceed with an informal settlement conference, b. with or without an attorney on both sides, c. go to pre-litigation mediation, d. with or without an attorney on both sides, e. conduct expedited mediation by agreement, f. mediate pursuant to a court order, or, g. move on to a contested trial.

Parties with very limited resources can seek unbundled services in the form of a full consultation, for which I charge $500, ghostwriting, or even a “handholding agreement” where the client will represent themselves but with the ability to call and obtain answers to questions from a continuing legal advisor.

Only with the robust ” Legal Leatherman Tool” can the family law practitioner meet the needs of our West Virginia citizens.

Tying that back to the original issue I addressed in this case, since 70% of domestic violence filings are really “domestic squabbles” that do not need to have the stigma and the harsh adversarial quality of a domestic violence accusation, why does the magistrate not have the ability to accept petitions for “domestic squabbles”, conflicts that are urgent but fall short of domestic violence?

They could address them swiftly with simple orders such as the possession of a home or a car or even temporary custody of a child, but with a guaranteed hearing date in the near future. Such a tool in the toolbox could avoid lots of real domestic violence later. When there is no order and the parties are panicking, or they are angry, or they are thinking of violence, having ways to defuse the situation is essential. We do not have that now.

Right now, the only tool the magistrate has is the domestic violence petition. A more cumbersome tool which the Family Court has is something called a petition for ex parte relief”; that’s a petition which may be granted to one side based on a sworn affidavit without a hearing. I don’t have time to discuss it now, but it should be used rarely, and it has great potential for harm.

For now, the magistrate is like the person who only has a hammer; for him, every problem looks like a nail! That’s why we have the excessive filing of domestic violence petitions.

It occurs to me that collaborative divorce is a bit like the Leatherman Micro with two few tools and no HAMMER! And yes, sometimes “the hammer”, a trial, is necessary. But no person should be forced into a choice to take accept settlement or lose her lawyer. j.b.h.

This post was written by Burton Hunter

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