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Ethical and Practical Issues

We're getting divorced. Is using collaborative law a good idea for my spouse and me?

It might be, and it might not be. I'm in the process of writing an article on my observations over eight years of being involved with collaborative law as a practitioner, and I haven't been pleased with everything I've learned. Conversely, over this same period of time, the family laws and operation of the family courts seem to have gone downhill for a number of reasons, many that are attributable to the ideologies of applied therapeutic jurisprudence. This works to advantage the various alternate dispute resolution methods, which can become more desirable by comparison, but this is not, objectively, a good thing.

Collaborative law still is a relatively new concept, and most lawyers still aren't well versed in using it. I joined a collaborative law group in 2001 with high hopes for the development of this kind of legal practice, and with the thought that it might expand beyond family law into other areas, such as business partnership dissolutions and disputes, or construction issues, just as mediation did. That hope has not been borne out, although collaborative law seems to have gained more and more establishment -- and statutory, state supreme court and bar association -- support.

Nevertheless, there also also remain different schools of thought on how collaborative law should be practiced. It's one tool that, like other forms of alternate dispute resolution such as mediation, can be misused or otherwise used where it's not appropriate. It's still evolving. I do believe that the concept can be beneficial to some clients, but it's crucial that someone who is considering using a collaborative approach select the right lawyer (one probably cannot change lawyers using collaborative law and continue in that process). Any client considering collaborative law also must become fully informed about the process prior to submitting to it. Unfortunately, the lawyers who are most enthusiastic about practicing collaborative law probably are the least likely to provide full disclosure of the numerous potential drawbacks.

My idealism is gravitating more these days toward "cooperative law" which is very similar to a deal-making, transactional law paradigm.

therapeutic jurisprudence - custody evaluators - guardians ad litem - collaborative family law So what are the negatives. Among the problems that I am seeing with collaborative law is that what appears easier for clients also holds the promise of benefits for lawyers. Thus, there seems to be too many noncompetitive (in the credentialing sense of the word) practitioners mostly concerned with making a buck who are moving into practice areas that seem to offer them an easier and potentially more lucrative lot.

Alternate dispute resolution that occurs outside of court also provides a private cover for lawyers who screw up, churn fees, waste time, or just obtain less than adequate results for their clients; it's easy to chalk up complaints to the emotional issues of uncooperative or "crazy" clients, and there is no third party oversight. (Indeed, privacy is one of the touted benefits of the collaborative process). Family law in particular also is an area in which a lack of creative, attentive and zealous representation can be covered up and rationalized under the pretense that "it's better for the kids if everyone just gets along." (In my opinion, this can be way too touchy-feely. People don't necessarily need to be amicable or lack serious issues in order to come to the table and negotiate like businesspersons making a deal.) Additionally, too many of the otherwise competent family law practitioners seem to be more interested these days in sucking outrageous fees from a captive marital pot than focusing on achieving functional, workable end goals in their clients' and clients' children's emotional and economic interests.

Another consideration is that many of the collaborative groups now are including non-lawyer financial and mental health members. This goes beyond lawyers, psychologists and others cultivating informal feeder referral relationships with each other -- which are problematic enough from the ethical standpoint. But worse, these collaborative law groups are, at the heart, active formal business referral organizations and working groups that strive to maintain something more than cordial business networking associations among the members. The collaborative law groups exist specifically to refer business to each other, keep each other in like-minded ideological and procedural lockstep, bring each other in to work on cases, and jointly market their very different respective businesses. A number of serious ethics issues are coming up because of this, and (until my current article is finished) some of the ethical problems are touched on in my article on therapeutic jurisprudence and the unhealthy cross-referral feeder relationships that arise out of the multidisciplinary practice.

collaborative divorce disaster Women, and mothers particularly need to remain aware that there are many joint custody and fathers' rights leaning proponents pushing alternate dispute resolution on women who lack the bargaining power to be sitting at any negotiating table without an option to resort to litigation. (Don't get huffy now -- I represent plenty of guys, but I'm telling it straight here. If you are a dependent spouse or an abused spouse and what you are facing is, respectively, mostly akin to a collection action, or you or your children need some serious protection, or you would have the stronger case if you went to court, you likely want to stay away from all of these trendy ADR techniques unless you have one of the most clever and creative of lawyers at your side.)

So... with these caveats, and the admonition that who is representing you should always take precedence over the choice of any particular method of resolving your disputes, and that no lawyer who is not zealous and competent can claim to be "ethical", do look into it. Information will help you make the right decision. Nothing is perfect, and no one's situation is exactly like that of someone else. The right lawyer will suggest what is likely to work for you, in light of your goals, and should have every dispute resolution option at his or her disposal. It may very well be wonderful for you. But don't let anyone give you any sell jobs, or push you into doing anything that doesn't feel right.

Collaborative law -- more dangerous cross-referral relationships?Prof. John Lande has written a particularly good article, Possibilities for Collaborative Law, which you can download. (If for any reason you have trouble downloading the article, or the link changes, let me know, so that I can help.) In lieu of collaborative law, you might also want to consider cooperative law, mediation, or just good old-fashioned settlement talks.

Note that the ABA (which then backtracked and blessed collaborative law as a limited representation) and the Colorado Bar issued warnings that collaborative law, as currently envisioned, may be an ethically flawed concept. Formal ethics (current pro-collaborative law) opinion issued, but also see

Conversely, here's a positive but balanced opinion. And here's another view of collaborative practice.

More commentary, to the negative, by Susan B. Apel, Esq., Professor of Law and Director of the General Practice Program at Vermont Law School. Prof. Apel expresses some doubts about some of Pauline Tesler's collaborative law precepts. (Tesler's ideas, however, should not be considered carved in stone. They do not represent methodology that developed in response to objective research findings, but rather, are procedures created based on idiosyncratic practitioner clinical observations, trial and error, and thought experiment, picking and choosing from work originating in the fields of negotiation and mediation.)

Finally, another warning to those with a rights-based negotiating position, or stronger legal case): Hilary Linton, Collaborative Law: Thinking About the Alternatives and more:

Kates, What's Wrong With Multidisciplinary Collaborative Practice?

Kates, Why "Therapeutic Jurisprudence" Must Be Eliminated From Our Family Courts

Next page, for those whose lawyer is considering using a collaborative approach, a summary of considerations, pro and con.

If you have a question about "the system" that you think might be of general interest to others, that you would like to see addressed on this website with no "spin" and no punches pulled, write to me. -- liz

Considerations involved in collaborative law


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