Volume 1, Number 3
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Collaborative Law – The Potential Downside Of The Latest Trend In Marital Dissolution
Collaborative law emerged in the 1990s and, along with traditional litigation and mediation, provides an additional forum for family dissolution. Collaborative law practitioners hope to provide a more civilized process that achieves results through negotiation sessions. Under a collaborative law approach, lawyers and clients agree to commit to negotiation – as opposed to litigation – as a method of resolving family disputes. This is accomplished through a “disqualification agreement,” entered into by all the parties and their lawyers, whereby lawyers are disqualified from representing parties in litigation should either party choose to litigate. Proponents believe that the disqualification agreement prevents lawyers and their clients from running to court at the first sign of trouble and keeps them fully focused on the negotiation process.
Collaborative law proponents tout it as a “kinder and gentler” process, which achieves results faster and more cooperatively than through litigation. It may very well be that – when circumstances allow. Collaborative law assumes that divorcing parties, armed with collaborative lawyers, are capable of working cooperatively together and that the outcomes they achieve by agreement are superior to those achieved through litigation. These assumptions may not hold true in real life. In most circumstances, it is unrealistic to expect divorcing parties, who are often angry and hurt, to put these feelings aside and enter into a cooperative negotiation process. A party who enters the process in good faith may later find themselves footing the bill for new legal counsel when the other party remains unyielding in negotiations.
The notion of “forced” negotiation, as embodied by the disqualification agreement, is risky in the divorce context. It may be irresponsible for lawyers to enter into such an agreement from the outset. As the case proceeds, it may reveal that such an agreement either was not necessary, or was not in the client’s best interest. Most disqualification agreements apply to lawyers and any jointly retained experts, including their work product. More than simply creating incentives not to litigate, the disqualification agreement poses a coercive element, particularly where clients have expended significant amounts of time and money in the process. Collaborative theorists conveniently overlook the fact that sometimes negotiations should break down. This is especially true in situations where parties do not have equal bargaining power.
Collaborative law proponents may believe that the issue of unequal bargaining power is “solved” by the fact that each party has representation. However, lawyers are not exactly zealous advocates in the collaborative law forum; far from it, they have irrevocably agreed not to litigate on behalf of their clients. This raises a host of ethical dilemmas (most obviously, the notion of refusing to follow orders from irrational clients), which are difficult to overlook. Moreover, the informal discovery standards may work against the party with lesser resources and less information. For example, one can imagine a situation where the party with greater financial assets enters into the collaborative process in order to take advantage of informal discovery practices and then refuses to negotiate in good faith. The weaker party is locked into negotiation and also left without the safeguards of court-ordered discovery.
The role of the collaborative lawyer is certainly an uneasy one. Stuck somewhere between mediator and advocate, the primary role of a collaborative lawyer seems to be to protect the process – not the client. Admittedly, some clients need more protection than others. In the rare event when both parties are equal negotiators and have equal access to information, collaborative law may in fact be a preferable method for dissolution than traditional divorce, one that saves clients time, money, and better preserves relationships. For these candidates, the collaborative approach is a welcome addition to family law. In the usual case where parties have disparate resources and unequal information, collaborative law may achieve less desirable outcomes than through traditional litigation.