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

-- Also read (a warning to those with a rights-based negotiating position, or stronger legal case): Hilary Linton, Collaborative Law: Thinking About the Alternatives

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 in this issue, and as with therapeutic jurisprudence generally, my opinions have grown more and more negative with time and observation. (Over the same period of time, the family laws and courts seem to have tanked too, which works to the advantage of the various alternate dispute resolution methods, albeit not for the right reasons.) Collaborative law is still 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 be expanded 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 holds promise, but it's crucial that a client both select the right lawyer (one cannot change lawyers using collaborative law), and also be fully informed about the process prior to submitting to it. I am gravitating more these days toward "cooperative law" which is very similar to a deal-making, transactional law paradigm.

therapeutic jurisprudence - custody evaluators - guardians ad litemOne of the problems I am seeing with collaborative law is that there seems to be too many burnt out and lazy practitioners mostly concerned with their own buck -- and referral relationships -- who gravitate toward practice areas that seem to offer them an easier lot. Alternate dispute resolution that occurs outside of court 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." (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.

collaborative divorce disasterMoreover, 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.

Joseph Goldberg and the network of PAS cross-referral relationshipsProf. 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

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

The Law Offices of Elizabeth J. Kates, Esq.
4411 NW Tenth Street
Pompano Beach, FL 33066


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