© 2009 E. J. Kates
Considering Collaborative Law: when is it appropriate?
When is it appropriate?
by Elizabeth J. Kates, Esq.
Before committing to use the collaborative process, and before holding the initial four-way meeting, a lawyer and his or her client must carefully -- and privately -- consider whether the case is appropriate for an attempted collaborative dispute resolution. The lawyer must objectively, fully, and fairly inform the client of not only the potential advantages of collaborative law, but also the potential disadvantages and risks. The process is designed such that it is a firm commitment: if it does not work, both of the collaborative lawyers must withdraw -- and may not represent their clients in litigation. This may or may not entail risks, depending on the facts of the case. Therefore, the client also has a responsibility to inform the lawyer of aspects of the client's situation and case that bear on this decision.
The collaborative process should not be singled out for scrutiny. It is an alternative to litigation, so the advantages and disadvantages of litigation similarly should be objectively and fairly weighed. Either process can involve the addition of mediation or arbitration to manage some of the issues, and litigation typically also includes some traditional settlement negotiations (whether under a cooperative law umbrella or not). Most litigated cases do settle, albeit after some amount of time, expense, pain and the risk of irreparably impaired relationships. Conversely, even collaboratively-resolved family law cases (just as family law cases resolved by mediation or settlement alone) can find their way back into court years later for future disputes involving child support and child custody, inasmuch as these kinds of matters remain open for adjudication during the minority of the child. There is no guarantee that new disputes will be resolved collaboratively in the future.
Blanket statements that collaborative law will be less expensive or faster than litigation cannot be made. However, in many cases collaborative law indeed may end up less expensive than litigation, because the collaborative process is designed to eliminate discovery issues, such as depositions, and the attendant motion practice and wrangling over the additional litigation-related disputes. This also can, and often does, speed resolution. Be this as it may, collaborative law is not designed to be a "quickie" process. In some cases with few or simple issues, it may take longer and be more expensive than would be litigation, straight mediation, or arbitration. Again, this is part of the decision making process in determining whether collaborative law is the best way of resolving the client's issues.
Collaborative law also may involve the hiring of additional professionals. This is an added expense just as in cases that are litigated. Who these additional professionals should be, and when and whether they are needed will vary depending upon the case, the parties, and even who the lawyers are. (For example, a given lawyer might or might not perceive benefit in a case from the hiring of a financial consultant, while another lawyer might be more inclined to encourage the parties to hire a mental health coach, all for a variety of reasons.) Additional factors moving this consideration will be the skill and particulars of the attorneys involved in the collaborative law process, as well as things such as court dockets and the motivation and capabilities of the parties themselves to work toward resolution. An advantage when using a professional in a collaborative case is that the choice of the professional is made by both parties and their attorneys using one professional, rather than having each party select a professional to counter the other party's professional in court (or a court-appointee).
Collaborative law offers the benefit of privacy in connection with the negotiation of settlement. So do mediation and traditional settlement negotiations, as well as the hiring of private arbitrators. The collaborative process, however, is designed to help keep the parties and lawyers from threatening litigation because of the risk of loss in the investment in the process that starting over entails, in addition to the parties' loss of their lawyers. In this way it can be used more satisfactorily for the resolution of more extensive and complex cases than can straight mediation. There is time to creatively hammer out more nuanced and detailed, party-crafted solutions of a kind that would be very difficult to achieve in a judicial order. And, the commitment of the lawyers motivates them to work toward resolution in a way that litigating lawyers in settlement talks might not do. The collaborative lawyers' commitment to full, open, and honest disclosure may mean a better and more satisfactory resolution, as well as a therapeutic regaining of trust and cooperation between the parties. However, at the same time, the more extensive discovery that often is produced in the collaborative process, including the admissions of party motivations and weaknesses, comprises knowledge that cannot enforceably be kept "confidential" if the collaborative process fails and that information serves to advantage one of the parties later in litigation. Of interest, here's another take on the issue, discussing problems with mediation (and potentially collaborative law as well), when adequate discovery is not forthcoming.
The collaborative process is designed as much as possible to alleviate disparities in bargaining power between the parties, such as financial power, legal knowledge, and negotiation skill. Where the parties are in disparity, it is the function of the collaborative lawyers to work to alleviate that disparity. Collaborative law is ideal for situations in which bargaining parity between the parties successfully can be achieved. In collaborative law, "interest-based" negotiations co-opt "rights-based" positional bargaining. But it's not perfect. Among other things, the collaborative process cannot overcome fraud by a party who also fools his or her own lawyer. Disparate bargaining power also can result from disparity in lawyers' skills, the mere passage of time when time alters positions, and the parties' own financial, intellectual, and emotional wherewithall.
Disparate bargaining power also can be the result of legal rights, in other words, what a court would likely grant to a party. Thus, cases that would not be appropriate for collaborative law include those in which substantially all of the relevant issues are ones in which a party's legal rights and interests are in nearly complete accord, but the other party's legal rights and interests are not. For example, if in fact it is in one party's legal rights and also long-term interests to maintain privacy from the other party and to eliminate the other party from involvement in the life of the first party to the extent possible, such as in a case involving serious domestic violence, compromises in favor of the other party's interests should not come into play. Collaborative law in such cases would be the wrong choice, and resort to the court system would be preferable.
Thus, there are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate. An added risk in cases with domestic violence or a deeply depressed party is the inability of the lawyers to represent their clients in court if there is an emergency mid-process, such as the allegation of a commission of domestic violence or child abuse, or an arrest or sudden serious illness or hospitalization of a party at a point after the collaborative process has commenced. (Those working on the Model Collaborative Law Act have attempted to address this problem with exceptions for emergencies, but these exceptions may be difficult to define and contain once the door is opened to them.)
Another kind of case involving an unresolveable difference between the parties' interests, but in which one of the parties' interests and legal rights are in accord (appear to be substantiated by case law and statute), is the case that is essentially a collections action. One party owes the other money and this is not reasonably in dispute. If there is not some other interest that can be factored into the bargaining, such as a desire of the parties to maintain a continuing good will, or a business or co-parental relationship, then litigation may be the more appropriate choice.
A case in which one of the parties makes a demand for money or property that is resisted by the other party, under circumstances in which there are few or no significant other issues or interests is not likely appropriate for collaborative law. If the demand is not warranted (e.g. a demand for alimony after a one-year marriage), then collaborative law may involve investment and commitment that will inappropriately pressure the erstwhile payor. Conversely, if the demand is clearly in accord with the law (e.g. collection of money or division of property fairly certainly owed), and the issue is merely the recalcitrance of an erstwhile payor, the erstwhile payor likely would have no interests at stake in cooperating, and could use the collaborative process just to waste time and wear down the other party financially and emotionally. There would be little or no bargaining power to induce collection. Thus, prior to the attorney and client entering into a collaborative agreement, the issues should be identified and discussed, as well as all alternative legal approaches.
Compare the foregoing situations to one where a primary issue instead is a difference of opinion about how to equitably divide non-liquid assets. In this kind of case, collaborative law might have much to offer. Although the single-issue financial dispute might be satisfactorily handled using a different legal process, collaborative law would seem to be ideally designed for the resolution in good faith of difficult and complex financial issues. Examples would be divorces in which corporations and partnerships must be reorganized, sold or divided, or in which there are difficult issues of income-asset mix, or retirement and pension needs. Similarly, collaborative law also may be ideal for the ordinary case of two competent trustworthy parents who want to get over and past the hurdle and hurts of the marital breakup, resolve a workable co-parenting arrangement and recover some semblance of a decent friendship. A known problem with litigation is the unnecessary exacerbation of already raw feelings and betrayals of trust, the creation of additional litigation-related disputing, and the potential for position hardening resulting in the parties losing the chance they might have had to reconstruct a new relationship on an alternate basis (such as basic friendship or just their mutual interest in the well-being of the children).
John Lande and Forrest S. Mosten, in a new article "Collaborative Lawyers' Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients' Informed Consent to Use Collaborative Law", 25 Ohio State Journal On Dispute Resolution, forthcoming (2010), discuss these issues and the importance of a lawyer and his or her client fully informing each other, and of the client's need to give truly informed consent. The paper can be downloaded at http://law.missouri.edu/lande/ Factors Lande and Mosten identify as important considerations (they discuss these in more depth) include:
Elizabeth Kates has practiced law in Florida for nearly 30 years. She is a director of the National Network on Family Law Policy, and was a charter member and director of Collaborative Lawyers of South Florida, Inc. for eight years before becoming Vice President and Director of Collaborative Lawyers Inc. Collaborative Lawyers, Inc. is a state-wide educational and professional development association and business directory of independent Florida attorneys at law and family law firms who practice in the areas of collaborative divorce and collaborative family law.
Information on this website should not be taken as legal advice. Laws change, situations differ, and there may be exceptions to general rules. Except as otherwise may be provided, this website and contents are © 2009 Collaborative Lawyers, Inc. Collaborative Lawyers, Inc., is a state-wide educational and professional development association and business directory of independent Florida licensed attorneys at law and law firms who practice in the areas of collaborative divorce and collaborative family law. It is not a law firm or attorney referral organization.