4 Reasons Why Collaborative Practice Is An Improved Way for Families To Separate and Divorce- and why most divorce lawyers don’t want you to know about it!
Not all cases are appropriate for Collaborative Practice. My experience indicates that at least 80% of the cases in our legal system are appropriate for Collaborative Practice, and here are the reasons why.
- First and foremost, Collaborative Practice utilizes a different kind of dispute resolution process. It is called Interest Based Negotiation. When divorce became legal across the county 50 or 60 years ago, our legislators simply added “divorce” to the long list of disputes handled by our judicial system. It was done without much thought and was a boon to the trial lawyers. Many trial lawyers became divorce lawyers and applied the trial skills they honed in commercial litigation to “winning a case” against a person’s husband or wife. Interest based negotiation is a more appropriate process to resolve a dispute where a family must continue to co-exist after the lawyers, judges and guardians have made their money and moved on to find other victims to serve their egos and bank accounts.
- You can always go to court. The divorce lawyer will often criticize collaborative practice because it requires the lawyers to withdraw from the case if they are unable to resolve the dispute. Without addressing the ego (and greed?) of the divorce lawyer, interest based negotiating requires lawyers who fail in settling their case to be excluded from the litigation. Without this exclusionary requirement, everything that is said and done in the settlement process will be stored away by the divorce lawyer for later use against their client’s spouse should the parties be unable to settle their case. Divorce lawyers are required to do this in an adversarial setting: we have an ethical obligation to prepare for trial while also trying to settle the case. As a result, the parties will not receive the benefit of the creativity and forward thinking analysis inherent in the Collaborative Process. In my personal experience I have had only 4 cases out of nearly 100 collaborative cases resort to litigation, and the national trend is very similar.
- The best qualified, most affordable professionals are employed. Just because a divorce lawyer can not resolve a divorce case, does not mean that it must go to trial. The family simply may, and often does, need more help to get through the problem. The collaborative team utilizes neutral specialists to assist the family in moving forward in a non adversarial, respectful manner that honors the dignity and worth of all family members. These added costs are essential to the interest based dispute resolution process, and will often save clients tens of thousands of dollars in legal fees, guardian fees, depositions, discovery costs, etc. that are endemic to contested divorce litigation.
- Collaborative Practice is future oriented. The adversarial legal system is designed to assign blame for past actions and then issue a judgement to “make things right”. In 25 years as a trial lawyer I have rarely seen the Phoenix rise from the ashes of litigation. More often than not, litigants in family court rarely feel the added emotional and financial costs were worth the suffering and damaged relationships. Collaborative Practice, by utilizing the interest based negotiation process, looks to the future. This is because most families must have a future relationship after the divorce process. Regardless of how the parties feel about themselves, if they have kids, then they will be involved with each other indefinitely. How the parties conduct themselves through the divorce and separation process will go a long way in determining what kind of relationship they will have in the future, not to mention how the divorce will effect their children’s emotional health.
If a lawyer want to be a trial lawyer and can’t find anything to litigate other than a family dispute, I recommend they go to the local public defender and ask for some difficult criminal cases. When I was a public defender I tries over 100 felony cases, 7 of which were murder cases. Nothing speaks to a trial lawyer’s ego like a high stakes case and a 12 person jury! There are plenty of deserving cases out there that a trial lawyer can direct their energy and serve their ego, but a person’s family is generally not one of them.