Nothing in the collaborative law agreement precludes parties from litigating if the process breaks down. But if they do so, they will have to move ahead with new attorneys.
Finally, there's a new, peaceable method for cutting the ties, known by the name of collaborative divorce. If you need more protection than a mediator could possibly offer but still want your divorce to be as amicable as possible, a “collaborative lawyer” may be for you. According to the Collaborative Law Center of Cincinnati, OH, “Collaborative Law is representation without litigation. It provides clients and their lawyers with a new, formal and strictly nonadversarial approach to resolving legal disputes. It encourages mature, cooperative and noncombative behavior as the parties contract to eliminate litigation as an option.” The goal of collaborative law is to offer lawyers and their clients a structured, nonadversarial alternative to an increasingly adversarial system of dispute resolution. By entering into a collaborative law participation agreement, lawyers and their clients limit the lawyer's role to that of negotiator, capable of representation toward settlement but not going to court.
What Sets Collaborative Law Apart
How is collaborative law different from mediation? Mediation involves the use of a neutral third party to facilitate the negotiation and settlement of a dispute. Parties can always walk out of mediation and decide to litigate instead. However, in collaborative law cases, lawyers and their clients will talk and negotiate without the assistance of a neutral third party, unless they find such an intervention would be useful. They are committed to continuing the dialogue until a satisfactory solution is reached, since litigation is not an option with these attorneys. Should the talks break down, the divorcing couple would be bound to find new counsel and start the process again. Even though litigation has been ruled out, clients remain protected in a way not possible in mediation. Whereas a mediator does not have attorney-client privilege, a collaborative lawyer never ceases to be the client's advocate, and privilege is maintained.
A Way to Stop the Madness
In an issue of American Journal of Family Law, Gregg Herman, a family law attorney, described one colleague's decision to enter the field of collaborative divorce. The attorney had represented clients in many contentious divorces and she found that often, even after the case had been settled or decided in court, the ex-husband and wife would find new things to fight about, and new hostilities would erupt. The children were the primary victims of this endless warfare. The attorney knew she could no longer be party to it when, after a particularly vicious battle, a 14-year-old girl committed suicide with her father's gun. The attorney was in court representing the devastated mother because the father had filed a motion for reimbursement of funeral expenses.
According to Herman, “All of the anger and hate which is intrinsic to family law litigation made her feel that her legal abilities were being abused. Rather than helping people, she felt that she was adding to their problems.”
There had to be a better way. This lawyer and many others unwilling to perpetuate the madness found another model—“collaborative law,” in which they help to solve problems instead of making them worse. Contractually bound to settle the case out of court, the attorneys will withdraw if the case goes to trial. The real intent is not to bail, of course, but to help their clients sustain amicable relationships long-term, especially when children are involved.
Is Collaborative Divorce for You?
According to Tesler, “mediation works best when both spouses share a basic trust in one another's honesty and are reasonably at peace with the fact of the divorce.” Still, disparity—lopsided bargaining power or financial sophistication—can play havoc with the mediation process, with no guarantee that a neutral mediator will get it right.
If you want the best deal possible no matter what the cost or emotional pain for others, the collaborative divorce model is not for you.
In that instance, those hoping for an amicable divorce should consider collaborative law. Collaborative law “can help spouses arrive at creative settlements even when the problems are complex,” Tesler says. “The settlement results can often be more creative than in other models, because neither lawyer succeeds in the job she or he was hired for unless both spouses' legitimate needs are met in the settlement.”
The model may not be available everywhere. States that are particularly active in this area of law include California, Georgia, Connecticut, Minnesota, Texas, Wisconsin, and Ohio.