COLLABORATIVE LAW & ADR ALTERNATIVES:
COMPLEMENTARY OR ANTAGONISTIC?

BY KEN NEUMANN
(PRESENTED AT AFCC-NY SECOND ANNUAL CONFERENCE, NOVEMBER 21, 2003)

Good afternoon…. We mediators have done our job and now we can go home after our long struggle to get divorce lawyers to clean up their act and to offer people a better way to get divorced. After all it was mediation that inspired the creation of Collaborative Law. Lawyers now realize that perhaps what they had been doing all along wasn’t really helping their clients. And with this new procedure, Collaborative Law they can once again assume their proper place as the champions of those needing assistance to get divorced.

So what is Collaborative Law? I’ll read from the 2001 Texas statute that sanctioned the practice of Collaborative Law. The bill defines Collaborative Law as follows:

a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.

This almost sounds too good to be true. So let’s take a look at it in close detail.

The parties are agreeing in writing to use their best efforts and make a good faith attempt. Are we saying that unless attorneys were agreeing to this in writing that those same attorneys not working in the Collaborative Law model would not use their best efforts and make a good faith attempt? Did we need to legislate this?

The statute also calls for the following:

  1. A full and candid exchange of information as necessary to make a proper evaluation of the case. Does stating this in any way suggest that there had previously been another standard in place for lawyers, perhaps one that didn’t call for a full and candid exchange? Would anyone have advocated for that?
  2. Suspending court intervention in the dispute while the parties are using Collaborative Law procedures. I guess that it wouldn’t make sense to simultaneously be working with Collaborative Lawyers and Adversarial Lawyers.
  3. Hiring experts, as jointly agreed, to be used in the procedure. Is someone suggesting that it makes more sense to hire only one expert to evaluate a business rather than have each lawyer hire their own expert and then wind up with two totally different evaluations? It’s reassuring to know that if the Collaborative Law process breaks down that we are not permitted to use this one expert’s evaluation. And that we can go back to the proven and tested method of having each party’s lawyer bring in their own expert, the one that they trust.
  4. Point 4 is most interesting. It requires the withdrawal of all counsel involved in the collaborative law procedure if the Collaborative Law procedure does not result in settlement of the dispute. When you hear this it makes sense if you of course assume the following: That if lawyers are allowed to benefit from a costly litigation then they won’t be motivated to settle a case. And that it’s only if we take that possibility away from lawyers can we trust them to work on our behalf and not on their own. And that with Collaborative Laws we have just that….Let’s look at the issue of fees. One complaint about divorce has been how high the costs can be. What are the real numbers when we compare the cost of a:
    1. “traditional” divorce, that is one where the two lawyers are not bound by the Collaborative Law rules,
    2. a divorce that it is assumed will be completed in the Collaborative Lawyers process, and
    3. a mediated divorce. We shy away from openly talking about this aspect of our work… I would wonder if the costs would be different for Collaborative Lawyers who are also mediators and Collaborative Lawyers who are not mediators but also practice adversarial divorce. Just curious, let me ask for a show of hands. How many in the audience think that the two groups on the average would have different totals in what they’ve billed their average client? This is quite interesting, it seems that the majority of you feel that Collaborative Lawyers who practice mediation would bill less than Collaborative Lawyers who don’t practice mediation but instead also practice adversarial divorce. What does this mean? To me it seems that those of us who are trained and practice as mediators are more likely to make the divorce process less adversarial, that we know how to help parties reach consensus more quickly and that therefore it takes less time and thereby generally costs less.

So what do I recommend? I recommend the following:

  1. That all the rules of Collaborative Law be immediately applied to all lawyers practicing divorce and that any time there is a divorce proceeding where each party has separate counsel that those lawyers are required by law to follow all the rules of Collaborative Law.
  2. That any lawyer upon meeting with a client in addition to now explaining the new Collaborative Law rules that are now in place also explains the option of mediation and how it in fact differs from Collaborative Law as follows:That instead of all of the meetings being so-called 4-ways, which generally have followed individual meetings that each client had with their separate counsel and also includes of course a conference or at least a conference call between the two attorneys so that when the first four way takes place the attorneys will be up-to-date. That this be replaced by a single mediator who generally meets only with the two clients, but that each client is free to consult at any time with their attorney and that when the clients choose, their attorneys can attend the mediation sessions. And since all attorneys under my proposal are now Collaborative Lawyers we will no longer need the concept of “mediation friendly” attorneys. Because all attorneys will now be “mediation friendly”. There won’t be anything else… and we have it all to owe to Collaborative Law.

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