NEW -- Colorado Bar, ABA Weigh in on the
Ethical Issues in "Warning to Collaborators"

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

It might be, and it might not be. It's still a relatively new concept, and most lawyers aren't well versed in using it. There also are different schools of thought on how it should be practiced. It's a 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 holds promise, but it's crucial that you select the right lawyer. I am gravitating more these days toward "cooperative law" which is very similar to a deal-making, transactional law paradigm.

Unfortunately, there are too many burnt out and lazy practitioners mostly concerned with their own buck who gravitate toward practice areas that seem to offer them an easier lot, and in which, if they screw up, churn fees, waste time, or just obtain less than adequate results, it's just too easy to chalk up complaints to the emotional issues of the ubiquitous crazy client. 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." (Way too touchy-feely. You 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.) And too many of the otherwise competent law practitioners are more interested 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.

Moreover, there also are too 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 at me -- 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, 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. But don't let anyone give you any sell jobs, or push you into doing anything that doesn't feel right to you.

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.

And The ABA and Colorado Bar now have issued warnings that collaborative law, as currently envisioned, may be an ethically flawed concept. Formal ethics opinion issued, and also see http://www.abanet.org/journal/ereport/my4ncolab.html

More commentary 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.

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