Collaborative Divorce or Cooperative Divorce?
"Collaborative divorce" is the new buzz word in family law practice.
Its proponents enthuse about better and less costly settlements,
greater client satisfaction, fewer accounts receivable, and less stress
in the practice of law, than they can achieve through a conventional
approach to family law disputes.
How realistic are these claims? What
are the down sides of "collaborative divorce"? Does the concept of
"collaborative divorce" present ethical pitfalls and possible
malpractice minefields for the unwary practitioner?
Lawyers who
participate in the "collaborative divorce" movement use methods borrowed
from more established alternative dispute resolution procedures to
resolve family law disputes without litigation.
However, unlike more
accepted dispute resolution procedures, in "collaborative divorce" the
lawyers and their clients agree that they will not engage in formal
discovery, will voluntarily disclose information, and will settle the
case without court intervention of any kind . They assume a duty to
inform the attorney for the other party of errors they note in opposing
counsel's legal analysis or understanding of the facts. If they are
unable to settle the case, both lawyers must withdraw from representing
their respective clients and the estranged spouses must start over with
new counsel.
Good Lawyers Routinely Practice Cooperatively
Even
the most enthusiastic supporters of "collaborative divorce" concede
that the concept of settling cases rather than litigating them is hardly
novel. Capable family law practitioners have always directed their
effort and creativity toward reaching agreement rather than duking it
out in court.
It isn't news to anyone that litigation is expensive -
sometimes prohibitively so - and that the most satisfactory settlements
derive from skilled negotiation between capable counsel rather than a
court-imposed resolution of disputed issues. How does the idea of
"collaborative divorce" differ from what experienced practitioners do as
a matter of course?
Courtesy. The commitment of lawyers and
parties to treat each other courteously is not a new one. Capable
attorneys consistently endeavor to work cooperatively with opposing
counsel to identify and value assets, set and meet scheduling deadlines,
and otherwise facilitate resolution of the case.
They respect
legitimate positions taken by the other party and encourage their
clients to be realistic and respectful as well. They are willing and
able to compromise, and they are creative in crafting acceptable
resolutions of disputed issues. "Collaborative divorce" supporters
intimate that their process is unique because lawyers commit that they
will not "threaten, insult, intimidate, or demonize" other participants
in the divorce process. Good lawyers don't do that now.
The American
Academy of Matrimonial Lawyers, which historically has provided a model
for good practice nationally, has promulgated "Bounds of Advocacy" that
set a high standard for professional courtesy and cooperation.
Emotional
cost. "Collaborative divorce" proponents say their process is designed
for parties who don't want to go to war and who don't want "to hate
each other for the rest of their lives." This description fits the vast
majority of family law clients, including most of those whose cases end
up in court.
Clients almost always care about the emotional cost of
adversary proceedings, and about the impact of the divorce action on
their children and other family members. To suggest that people who
really care will give up the protections provided by court oversight is
to do a vast disservice to most of our clients.
Financial cost.
"Collaborative divorce" supporters want to reduce the costs of the
process by streamlining the discovery process. This also is not a new
idea. Good lawyers have always sought to keep formal discovery to a
minimum, to share costs of appraisals, to stipulate to values, and to
cooperate in other ways to keep costs down. Many experienced
practitioners routinely utilize mutually agreed upon short-form
interrogatories, four-way meetings, joint telephone or in person
conferences with experts, and other such collegial arrangements.
As
the above analysis indicates, the goals espoused by "collaborative
divorce" lawyers do not differ in degree or in kind from the goal of the
vast majority of the family law bar. Most lawyers try a cooperative
approach first. Most lawyers agree - and most of their clients concur -
that resolution of issues by settlement is preferable to litigation.
And in most cases, lawyers and their clients resolve disputed issues by
agreement and do not resort to the courts.
The Limits of Collaboration
Despite
the most concerted efforts of capable counsel, we all know that not all
cases settle, and those that do settle sometimes don't settle easily.
All of us have encountered the frustration of the last-minute,
courthouse steps agreement, after completion of all the work and stress
of trial preparation. Why is it that some cases don't settle until the
very last minute, and some cases don't settle at all?
Unsettled
Legal Issues. Legitimate reasons to resort to litigation are not always
evident at the beginning of a case. Much appellate work involves
issues the existence of which - or at least the seriousness of which -
did not surface until significant discovery and negotiation had
occurred. Where the law is unsettled or where counsel genuinely
disagree about the appropriate interpretation and application of the law
to the facts of their case, it is not only reasonable but necessary to
ask the judge to intervene.
Cooperative counsel can reduce the
complexity and expense of litigation by limiting contested issues,
stipulating facts where possible, agreeing in advance to the admission
of exhibits, declining to engage in delaying tactics, and other behavior
that is both practical and considerate. Lawyers can commit themselves
to conduct the proceedings without animosity and can counsel their
clients to be courteous to the other side. But the court has the last
word on interpreting and applying the law.
Reality Testing. All
clients say they want a "fair" result and many of them genuinely mean
it. But they may have a very self-absorbed definition of "fair." Many
years ago Leonard Loeb, whose wisdom and example have greatly influenced
the development of a civilized standard of practice for family law
attorneys, pointed out an important truth: "Sometimes the hardest
negotiation you have to engage in is the one with your own client." A
client who simply cannot see the broader picture despite counsel's best
efforts may require the reality therapy of a temporary order hearing, or
a pretrial with the judge, or a deadline for responding to formal
discovery, in order to be capable of backing down from an unreasonable
stance so settlement negotiations can proceed.
Scheduling Orders.
We have all represented a left-behind spouse who does everything
possible to avoid or at least delay the divorce, or a party who is
preoccupied with business affairs or other family problems and just
can't get around to dealing with the work and decision-making implicit
in the divorce process. If one party would prefer that the marriage
continue, or if completing the action is not a priority, the court may
need to facilitate progress in the case by issuing a scheduling order
and setting deadlines.
Counsel can cooperate by being reasonable and
courteous in setting initial deadlines and in agreeing to extensions
where necessary. The process need not be - and usually is not -
antagonistic.
Financial Disclosure. A client may, deliberately or
inadvertently, fail to disclose assets without the rigorous attention
to financial detail that formal discovery entails. Surely we have all
had the experience of finding forgotten assets when a client produces
the records necessary to back up his or her interrogatory answers.
In
other circumstances, the client and/or counsel may need the assurance
of due diligence in discovery in order to be comfortable with a proposed
settlement, especially where the estate is complex or the assets are
substantial.
Stability. Then there is the personal factor:
divorce presents a significant life crisis for most of our clients, and
we see them at their most vulnerable and most needy. The commencement
of a divorce action is often accompanied by anxiety, guilt, an danger,
and may throw a family into chaos.
If one party's antagonism toward the
other is so overreaching that he or she is unable to proceed rationally
and courteously, interim court orders may be the only way to achieve a
level of stability that permits collaborative discussion of the
long-term issues presented by the case.
In each of the above
situations, the legal system provides structure and finality, and often
sets the stage for the ultimate negotiated resolution of the matter.
Court processes, rather than being an impediment to settlement, often
facilitate it.
The Effectiveness of a "Collaborative Divorce" Approach
Do "collaborative divorce" techniques provide an effective response to the above limitations? Unfortunately, they do not.
Reality
Testing. A client whose sense of "fair" is out of kilter with that of
the other party and the lawyers will defeat the collaborative process,
and both sides will have to incur the expense and delay of starting over
with new counsel. Reality testing through a temporary order hearing or
a pretrial with the judge is not an option in "collaborative divorce."
The lawyer representing a difficult client must either advocate for
the client's unreasonable position or take a public position adverse to
the client's view.
An attorney cannot ethically make either of these
choices, The first is at least arguably frivolous; the second violates
the requirement that we advocate diligently for our clients. Proponents
of "collaborative divorce" have not provided a solution to this
ethical dilemma.
Delay, Expense, and New Counsel. A client who
wants to stall progress in a "collaborative divorce" can do so
indefinitely, until the court threatens to dismiss the action and the
party wishing to proceed must then retain new counsel to request a
pretrial. Again, both sides incur the expense and delay of bringing a
new attorney up to speed. The attorneys who know the facts and have
established rapport with their clients cannot continue to be involved.
How can this result benefit anyone?
Diligence. Lack of due
diligence in discovery may subject the attorney to a malpractice claim
[see Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W. 2d 118
(1985)], may violate the ethical requirement of diligent representation,
and may make the client uneasy about signing on the dotted line. In
complex cases and cases in which there is a disparity in the spouses'
respective familiarity with or involvement in financial affairs, the
security of formal discovery is not available to help resolve
"collaborative divorces."
Timely and Efficient Court Intervention.
If there is sufficient antagonism that experienced counsel are unable
to negotiate an agreement, or if one party refuses to comply with an
agreement, court intervention is necessary. Under the "collaborative
divorce" approach, both lawyers must withdraw just at the time that an
attorney who knows the case is most effective.
Malpractice Issues
In
collaborative divorce, the parties and their respective lawyers sign a
single contract, at least arguably creating obligations of each lawyer
to the other attorney as well as to both clients. The collaborative law
contract puts each lawyer in privity with both parties and with
opposing counsel, creating a basis for contract claims to which an
attorney is not exposed in standard practice.
Moreover, the
collaborative divorce contract assumes, though it does not specifically
state, that each client completely waives his/her attorney's obligations
to maintain client confidentiality and not to inform the other party or
lawyer of his/her legal, factual, or strategic errors. Yet, the
contractual commitments required for "collaborative divorce" eliminate
these obligations and substitute in their place obligations to disclose
and to inform that are at least theoretically actionable either as
contract claims or negligence (malpractice) claims.
Assume that
Attorneys A and B and their clients have agreed to proceed with a
"collaborative divorce." Attorney A makes a mistake that disadvantages
client A and benefits client B.
If Attorney B fails (deliberately or
negligently) to correct the error, can client A sue Attorney B for
malpractice? If Attorney B corrects the error, to his/her own client's
detriment, can Client B sue Attorney B for malpractice? Does the
existence of a "collaborative divorce" contract provide a defense to
malpractice? Does it increase malpractice exposure by permitting each
party to sue both lawyers?
If, unknown to Attorney A, Client A
fails to provide full financial disclosure and thus disadvantages Client
B, can Client B sue Attorney A for malpractice? Can Client B sue
Attorney B for failing to take steps to discover the omission? Can
Client A sue either or both of the attorneys for malpractice if the
nondisclosure was inadvertent and would have been discovered through
standard formal discovery, and if the effect of the error is that the
judgment is vacated and litigated with new counsel with Client A held
liable for Client B's additional costs?
If Attorney A fails to
spot an issue that would likely be resolved in Client A's favor, does
Attorney B have a duty to raise the issue? If Attorney B fails to do
so, can Client A sue Attorney B for malpractice? If Attorney B raises
the issue, can Client B sue Attorney B for malpractice?
Have you
notified your insurance carrier? How will you pay for breach of
contract litigation and possible judgments against you that your
malpractice insurance does not cover?
"Collaborative Divorce" May Increase the Cost of Divorce
"Collaborative
divorce" is marketed as a cost-saver for clients, but is it really?
We all know that settlement is less costly than litigation. The issue is
not whether "collaborative divorce" is less expensive than litigation,
but whether it permits participants to spend less than they would if
they employed more conventional settlement approaches. Most lawyers try
informal discovery first and proceed to interrogatories or requests for
document production or depositions only where informal attempts have
failed or where the information provided is suspect.
Most lawyers
schedule contested trials only after repeated attempts to arrive at
negotiated settlements. Most lawyers genuinely believe that better and
more creative settlements can be achieved through negotiation and
creative planning rather than through a court-imposed resolution.
Virtually no good lawyer chooses litigation as the first and best
option.
