Newsletters

Briefs

by Tom Noble ¹
214-692-1888
fax: 692-8577
tnoble28@hotmail.com
http://www.tnoble.com/

10.2.00

Collaborative Family Lawyers: An Oxymoron?

• The attack continues against the traditional, adversarial method of resolving family law disputes through litigation. First, a wave of mediators invaded the courts, preaching that the adversary system is rarely the optimal way to resolve family issues. Research had clearly shown that custody cases are bad for kids. It did not take a young lawyer too long to discover that his divorce clients were angrier, broker, and, generally worse off after going through the family law system. Mediation offered a quicker solution, if employed properly, one which succeeded in settling legal disputes, and one which left the parties more satisfied with the legal process than litigation.
• Now Collaborative Law has launched a second attack on litigation and, in the process, just for good measure, an attack on mediation ² . This article will explore Collaborative Family Law ("CFL") ³ from the position of an outsider. ⁴
• What is CFL? CFL is unique in that the parties stipulate at the outset that if either of them decides to go to court, both lawyers have to withdraw. ⁵ The lawyers build this into their fee agreements. ⁶
• In CFL, the parties select only lawyers who are on an "approved list". ⁷
• After the parties select suitable counsel, the two parties and their lawyers have "4-way meetings" at which information is exchanged, the parties engage in face-to-face negotiations, the lawyers are supposed to, well, act like human beings ⁸ , and, if all goes well, the case gets settled, everybody's happy, and everybody gets paid.
• Theoretical Considerations. Let's examine the underpinnings of CFL. ⁹ Is its theoretical base grounded on sound presumptions?
• CFL presumes that people are "partially incapacitated" when they come into the family law legal process and they should not be screwing up their lives further through litigation. But, if divorcing parties are not mentally competent to decide about going to court, how can they have the capacity to give up their right to go to court without changing lawyers?
• CFL presumes that lawyers exploit their cases and need a financial disincentive to promote settlement. But, does it give proper weight to the fact that many family lawyers do not overwork their cases, handle cases where there may be little, if any, available funds to pay lawyers, and can't wait to get rid of their obnoxious clients without thought of billable hour?
• CFL presumes that the risk of giving up the valuable right of going to court with the lawyer you selected is worth the reward of creating a better environment for settlement, a better process and, possibly, a better solution. But, doesn't CFL discount the fact that many cases settle because the parties have not given up their rights to go to court?
• CFL presumes that consumers understand the ramifications of changing lawyers when they enter into the CFL process.
• CFL presumes that by biasing the dispute resolution process in a way so that lawyers must "settle or die", it does not create a system that will be more inequitable than alternatives; that lawyers will care little if their clients "cave in" on an issue because, being nothing more than pigs at the trough in real life, they don't get paid any more for fighting for a just and fair result than they do for a "generous settlement".
• CFL presumes that a "collaborative lawyer" can also do his ethical duty as a "zealous advocate".
• CFL presumes that face-to-face negotiations are superior to other alternatives, such as caucus style mediation. ¹⁰
• Can we apply CFL in all cases? CFL is tantamount to locking people in a room with their lawyers until they settle their case. Two nice people and two nice lawyers get together to work out win-win solutions. I don't think I need to cite any research to support the contention that this is not a procedure that will work in all cases. Those who are squeamish about mediating cases in which domestic violence has been alleged should howl at this one. I can't imagine anything worse than taking a client through a divorce under the CFL format and finding out after I watched her make a number of concessions that she had been a victim of domestic violence.
• And, there will be a large number of family law cases that involve people who do not want to sit in the same room together and do anything, especially with their lawyers.
• So, without belaboring the point further, it should be obvious that CFL is not a method that can be employed in all cases.
• CFL will not work in the kinds of cases I typically mediate: cases in which the parties do not want to be in the same room together.
• CFL will not work if one of the parties is a nut.
• Tactical Considerations. Should all divorcing parties consider CFL? There are a lot of good lawyers in Dallas who are using CFL with religious fervor. The proof is in the pudding. I am not suggesting that it has no value, but I do believe that lawyers need to be careful about using it and apply the format to select cases.
• Tactically, I would recommend it for cases in which I am representing the party who has the economic power. One thing that courts can do very quickly is to shift the economic balance of power between divorcing parties. Make that right harder to assert, by requiring a change of counsel, and the power of the party with the economic power is enhanced, thus improving his bargaining position. Conversely, by giving up the right to go to court without changing lawyers, the weaker party weakens her already weak bargaining position.
• CFL probably works best in cases in which the format, or the restrictions of the process, is really unnecessary. These are cases in which two mature adults get divorced; each is reasonable; there is no need for a court to be a watchdog, to get someone to do what he or she should be doing;and, the parties can sit down and discuss breaking up their marriage dispassionately.
• Conclusions. If a client pays a lawyer a lot of money to learn, analyze, and evaluate his case, the parties invest significant time in negotiations, and one of the parties decides to break off negotiations, the other party can suffer a serious hardship by having to start over with "trial counsel". For many, this will be unaffordable and their cases will get settled under "economic duress", as many do under traditional circumstances. That may improve the ambiance of family law cases for the lawyers, but is it really better for the clients?
• CFLers have some hard questions to answer. CFL will have to justify itself because the lawyers are recommending to their clients that they give up important and valuable legal rights. This means that they should get something at least equal in value in return. What is it?
• The good news is that family lawyers are sitting down and trying to work things out whereas in the past they did their working out in the courtroom. That has to have a positive effect on the family law system. If it takes imposing a structure on the lawyers to get them to do that, that is not so bad, so long as the clients understand the rights they are relinquishing.

¹ Not Certified by the Texas Board of Legal Specialization

² It is unfortunate that CFLers have felt it necessary to compare CFL to mediation and conclude that CFL is "more powerful". Sounds like there is more "competition" going on here than "collaboration".

³ You may see it as "Collaborative Law" or "Collaborative Family Law".

⁴ at least, so far.

⁵ And, all experts hired during the CFL process are disqualified.

⁶ Tesler, Pauline H. Collaborative Law: What it is and Why Family Law Attorneys Need to Know About It. American Journal of Family Law, Vol. 13, No. 4, Winter, 1999, page 219. It will be interesting to see what happens when someone contests this one. Unlike, mediation, litigation, and arbitration, the Texas Family Code does not address CFL.

⁷ In Dallas, the keepers of the wisdom who first introduced this process, trained CFLers by invitation only, offering the training only to lawyers who were board certified as family law specialists. The rest of us will have to "catch the next train". For years I have been railing against the specialization system for family lawyers because to become a specialist requires a lawyer to go to trial in a certain number of cases, thus encouraging unnecessary litigation. Stories at the courthouse abound regarding lawyers who try jury cases just to further their own careers. Now, irony of ironies, the very lawyers who created that system are advocating for a system in which, if they are successful, none of them will be qualified as "experts"!

⁸ Some would say that the lawyers have to act like "non-lawyers".

⁹ These are my opinions. I do not believe that you will find anything like these opinions in CFL promotional materials.

¹⁰ Caucus style mediation, where the parties negotiate with the advice of counsel without necessarily being face-to-face, is still the best format as far as I am concerned. It assures "informed consent", avoids the mishaps of face-to-face negotiations, and avoids the uncomfortable tension existing between most divorcing couples.