Family Law
Kinder, Gentler Collaborative Divorce Also Costs Less
Posted Dec 18, 2007, 03:48 pm CDT
By Martha Neil
A kinder, gentler method of getting divorced has won fans among both clients and counsel. But it has yet to win over some traditionalists, who wonder, for instance, why collaborative divorce must include a promise not to litigate. (Those who violate the ban on courtroom battle have to start over again with new counsel.)
“I have no issue … with two lawyers sitting down with two clients to work out a deal, but why it’s necessary to wrap all these conditions around it is beyond me,” David S. Goldberg, a Gaithersburg, Md., family law mediator tells the Daily Record, a Maryland legal and business publication.
Nonetheless, an increasing number of soon-to-be-former spouses and their lawyers are embracing collaborative divorce, as well as do-it-yourself divorce and mediation, in an effort to eliminate unnecessary animosity, reports the Associated Press.
"Most clients in a dispute are looking for an honorable peace, not war," writes David Hoffman, a Boston lawyer, in a Christian Science Monitor op-ed piece about collaborative law practice. "Collaborative lawyers can be just as zealous about seeking such a peace as litigators are about victory in the courtroom."
A recent American Bar Association ethics opinion (PDF) provides important support for collaborative divorce, by finding collaborative law agreements consistent with lawyers' obligations to serve their client's best interest, notes Hoffman, who chairs the Collaborative Law Committee of the ABA Section of Dispute Resolution. (What Hoffman describes as a "maverick" Colorado Bar Association ethics opinion earlier this year reaches a different conclusion than the ABA and several other state bar associations, however.)
Cost may also be a motivating factor in the quest for a peaceful resolution of a problem marriage: The Boston Law Collaborative, where Hoffman works, recently analyzed 199 of its divorce cases. It found that mediation had a median cost of $6,600, followed by $19,723 for collaborative divorce, $26,830 for a divorce settlement negotiated by counsel, and $77,746 for a litigated divorce.
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Comments
Posted by Wade H. - 6 months, 2 weeks, 1 day, 20 hours, 47 minutes ago
Alternative Dispute Resolution (ADR) has a great place in divorce proceedings and the family law arena. Although not for everyone, mediation and negotiation is a fantastic tool for dealing with issues that the couple could not (or would not) deal with when together. In cases dealing with separating couples with children, although everyone comes out better than if a hotly disputed litigation was the chosen path, the children are the big winners. Usually, by the time the divorce or family case is resolved, the couple is communicating better than when they were together, or at least in a civil manner that produces favorable results.
Additionally, when using these tools, the attorneys involved build a greater trust from their clients, resulting in repeat work in other areas such as estate planning, etc. The majority of my clients prefer to go the ADR route and I seldom have a contested divorce.
Posted by Mickey Gayler - 6 months, 2 weeks, 1 day, 14 hours, 17 minutes ago
The reason why collaborative lawyers agree not to litigate the case, if the case is not resolved by collaborative means, is to prevent the use of litigation tactics which are not consistent with the open discovery and candid dialogue requirements in the collaborative process. It also more closely aligns the lawyers’ interest with the clients’ interests.
All too often, litigators simply fall back on “let’s just let the judge decide this” and the parties immediately lose control of their case and ultimately their important life choices. Collaborative approaches yield a lot of ‘thinking outside the box’ which litigation tends to dismiss.
Posted by Steven H. Levy - 6 months, 2 weeks, 12 hours, 59 minutes ago
I litigate, mediate and collaborate, and the only difference is the manner in which the parties choose to interact. Parties who collaborate would not litigate. We all know that 90% of the cases settle, and the question usually is when, not if. It is the attorneys role to set the tone and push resolutiion instead of litigation.
The attorneys should not be forced out of a case if the collaborative approach is unsuccessful. The argument that it prevents litigation tactics and candid dialogue suggests that those issues exist, and I do not believe that is true. Further, it creates the fiction that the parties will not repeat the information learned to their new attorney. By forcing the collaborative attorney out of the litigated case creates the dilemma for the client whether to choose the attorney of choice and risk losing that attorney if the case goes into litigation, or abandoning collaboration and not risking the loss of the attorney. I believe collaboration would be the norm, rather than the exception, if this impediment was removed.