WHAT IS COLLABORATIVE FAMILY LAW?
No. I won’t litigate your case.
It’s a bold statement for a lawyer – to give up the very thing we’re trained to do. Beginning August 1, 2016, I will no longer accept cases for litigation. Instead, I will help you solve your legal problems in a rational manner. Going forward, I will only provide representation through collaborative efforts. So, what does that mean exactly? These are the questions I know you have because they are the same questions that I had.
The American justice system was designed as an adversarial process, primarily focused on crime and punishment, with civil disputes mostly following a parallel but separate path, with occasional procedural modifications. However, in the civil context, there have been insufficient evolutions to manage our nation’s expansion, population growth, or the complexities of modern families and businesses. As a result, the courts are flooded with cases. My office recently calendared a motion hearing that can’t be heard until next year – 5 months from now! That’s not reasonable.
The adversarial philosophy has also created a mindset among citizens and attorneys that every case is a war, a constant tit-for-tat, back and forth game to be won at all costs, reason and logic be damned! We have been conditioned to perceive legal actions as an “us against them.” Yet, rarely is either party 100% right or 100% wrong. The law is not black and white, and it is never reasonable for a litigant to think so. If attorneys could offer that kind of certain defiance to the other side, we’d be able to open a book and say to our prospective clients, “Ah yes. Here’s your problem. This is what will definitely happen. You are absolutely entitled to what you want, and the other side should agree, this instance! I’ll send this page number to the court and the other side. Done. And done.” Legal disputes are not math formulas. Even in the most technical cases, there is some level of human nature, whether jury or judge, that will drive the outcome towards fairness. Justice. Hardly. No one leaves a court with a perfect outcome.
This is especially true in the family law setting, whether the issue is divorce or probate; the adversarial nature of the court process is in direct conflict with the social realities and needs of the individual family members involved. Perhaps with the exception of adoption, a happy occasion, almost all family law matters arise from difficult life changes, and to pit family members against each other is counterproductive to healing. For example, mental health experts believe that spouses experience the same emotions as one might experience after the loss of a loved one – the demise of the marriage is the death of a beloved entity. A court procedural process that inherently adds more conflict to strained relationships does nothing to help people heal and move forward. Can you imagine being trapped in such a heated state of emotions for possibly years, just waiting on a hearing date? With no certain end in sight? It’s no wonder that the children of divorcing parents have been shown to experience life-long negative effects from a divorce. No one wins in family law.
There’s a better way. COLLABORATIVE LAW. Collaborative law is a relatively new philosophy of dispute resolution that focuses on a mature recognition of an existing disagreement and, with the help of neutral professionals and attorneys, helps the parties to problem solve together.
Each party has an attorney, and in a divorce, for example, the “team” may also include a neutral licensed mental health professional or social worker and a neutral financial professional, usually a CPA. The mental health professional does not serve in a therapeutic role, but rather, he or she facilitates the meetings and communications between the team members, helping the team stay on track, maintain respectful tones and language, and get to the bottom of the underlying personal interests that are creating conflict. Depending on the needs of the case, other neutral professionals may also be included, such as a real estate appraiser or child psychologist.
Together, the team helps the litigants find a solution. Each meeting may end in sub-agreements that later accumulate to a final agreement. This prevents wasted time, rehashing issues and emotions already extinguished. It asks the parties to take ownership of their role in the conflict, as well as in the solution. It demands that the parties realize that, one way or another, the dispute will end; they can either work together for resolution or gamble on the opinion of a judge, who will only hear arguments once.
Collaborative law has primarily been used in family law disputes, but around the world, the methods have proven successful in other types of legal matters. Legal scholars predict that collaborative law will become the norm, and litigation will be a rare exception, except perhaps in criminal law.
“Wow, hiring those professionals AND an attorney sounds really expensive.”
In fact, the parties will likely save money. Rather than each side hiring its own experts (incurring separate bills for nearly identical work that merely results in competing reports, depositions, discovery, and testimony), from the beginning of the case, the issues that require an expert are approached from a neutral analysis. This reduces expert witness fees and the related attorney fees. There are also cost-savings via a reduced time-frame for the case – I repeat: 5 months to get a family law hearing in my county! Instead of waiting, collaborative cases resolve after a series of a few meetings, by agreement of the parties. Can you live with your spouse for five months after you learned he cheated and wants to bring Tiffany or Amber over for dinner? Awkward.
Each party will still incur attorney fees, but the efficiency of the process, overall, with neutral experts, can minimize the attorney’s fees. For example, an attorney who holds an undergraduate degree in English may need hours to parse a complex financial issue that a CPA might solve in ten minutes, and the CPA likely charges less per hour or may also have committed to a flat fee for the case. Some of us can whip out a Supreme Court quality, thirty-page motion in under two hours but then struggle with long division! Attorneys are not financial experts. From the marital assets pot of money, do you want to hire one forensic accountant or two?An expensive divorce is not a good thing, even if you are awarded alimony of $1M a month.
I’m always baffled when people say, ”You know John Schmuck? He got a divorce, and between the two of them, they spent $80,000 on attorneys. It went on for five years, but he got the boat. He had a really good lawyer. Billy Dumbass should hire him.”
The price you pay for an attorney does not correlate with the quality of the representation nor the potential outcome in your case (realizing some will point to the exception of public criminal defense versus private criminal defense). Unless you own property on six continents, a 400-page prenuptial agreement, a multi-national Fortune 500 software company, and a mistress you took on a vacation to the moon, you shouldn’t spend $40,000 on a divorce attorney. If you did, something went terribly wrong. You didn’t “win.”
“But how will you make any money, if it is less expensive for the client?”
Dropping litigation is most definitely a business risk for a solo, small city attorney. However, hours billed does not always translate to an invoice actually paid. Every attorney ends the year with at least some clients having failed to pay their bills and never intending to pay. Even for practitioners that adamantly refuse payment plans, if leading up to the trial the client’s trust account balance becomes exhausted, there’s a possibility that the final bill will never be paid. At that point, a judge won’t likely allow even consensual withdrawal. If you’re a solo practitioner who has found a way to make it through a year without accounts receivable, I applaud you, and may I join your coven of wizards?
Though hourly billing will likely remain the norm, the collaborative process is one that can be billed as a flat fee, paid entirely upfront. Flat fee billing has become more and more common since the economic crash of the late 2000’s. I personally prefer flat fee billing in my practice, and I often use a hybrid flat fee/hourly agreement that converts the representation to hourly if the case becomes contested – because as all family attorneys know, every divorce is “simple and definitely uncontested,” until the other spouse gets served. But generally, one invoice for the entire matter is my default, not hourly. The reduced administrative headaches of hourly billing – trust accounting, timekeeping, and invoicing – opens up several hours a month for substantive work and less stress. Flat fees also provide the family or business with predictability as to the total costs of the dispute.
It is absolutely possible that my personal income will be reduced, but I am willing to take the risk because the emotional well-being of my clients, and the prosperity of their businesses and family relationships, is more important to me than buying a new car for myself. My clients are my neighbors. Some entrepreneurs will say I’m an idiot. Bring it. I am optimistic that my clients’ positive experiences with the collaborative dispute resolution philosophy will translate to more word-of-mouth referrals, and ultimately, more business.
I predict that the business gained from a client’s positive experience from the team’s assistance will do more to bring new clients than the questionable practice I see too often from opposing counsel – keeping litigation alive for the sake of billing more. Some attorneys will deny that this happens, but I have had too many cases during which it was blatant and obvious that opposing counsel was focused only on the bill. It is not in a clients’ best interests to unnecessarily be difficult, creating layers of conflict, just so the attorneys can bill more. And god bless the family if both spouses end up with that type of attorney! I am appalled by the practice and the wink-wink tolerance of it within the bar. Yet, when the other side sends an inappropriate supplemental request for production of documents, I am obligated to respond. It’s a cycle from which even the innocent cannot escape. The entire profession becomes suspect. It’s no wonder “all the lawyers at the bottom of the ocean is better than one.”
“So it’s like mediation or arbitration?”
No. Collaborative law involves a series of team meetings. Sometimes the parties will meet alone with the neutral experts, sometimes together, and of course, the clients will meet alone with their own attorneys. Mediation is usually a one-time event, though multi-day mediations are not unheard of. Mediation usually occurs after a lengthy and expensive period of discovery, and the parties only come together for those few hours to try and find an agreement.
In adversarial litigation, if the parties are lucky, their attorneys make an effort to negotiate as soon as the case begins, but in modern law practice, the ability of attorneys to make a profit anywhere close to what Uncle Attorney promised requires such a large volume of cases that we are all under a constant revolving door of responses and deadlines. Procedure and the court’s calendar often drive a case more than the attorneys. Meaningful negotiation, before mediation, is rare.
Mediation has its challenges. Given that research has shown that it takes approximately two hours for the brain to calm itself after an emotional incident, it’s no wonder Florida requires a separate certification to serve as a family law mediator. All it takes is one heated exchange, and the rest of the mediation session is blown. Collaborative law team meetings never exceed two hours, creating a sense of safety for the parties, along with defined boundaries and expectations for civil communication. They just have to keep from screaming at each other for two hours! And hopefully during that time, they will walk away with new communication skills that help ease the tensions until the next meeting.
A mediator helps the parties find common ground, but collaborative law has the parties work to solve the problem together. Divorcing parents need to learn to work together for years to come. There is typically only one mediator or one arbitrator, while collaborative law includes a team of professionals. It takes a village.
“My spouse will never agree.”
You’ll never know if we don’t ask. The two of you were once so clearly on the same page that you got married. It’s more likely than not that if your curiosity is peaked, your spouse will be interested as well. I will send a letter to your spouse, disclosing your intentions and seeking their consent to participate in a collaborative process. I will also include a list of my colleagues who have been trained in collaborative law. If everyone agrees, I will work with my opposing counsel to create a team so that we can move forward. You both start from a place of acknowledging a problem and a mutual goal to solve it, with the help of attorneys who are trained to get you to a conclusion. The very act of making the joint decision to pursue a collaborative resolution is a positive step in the right direction. If at the consultation we determine that your case is not suited for collaboration or if your spouse doesn’t’ agree to participate, I’ll refund your consultation fee.
“Can’t I ask any lawyer to use collaborative law instead of litigation?”
Sure, but don’t count on them saying yes. The philosophy of collaborative law requires a new way of thinking about the practice of law and dispute resolution. Lawyers spend a lot of money to be trained to do one thing – litigate. Obviously, some attorneys will never be able to break free from that mindset. Some attorneys will practice both collaborative and adversarial, varying by practice area or complexity of the case. Many have never heard of collaborative practice.
The concept was only innovated in the 1990’s. Though several practice groups have existed in South Florida for several years, attorneys in the western panhandle have only recently embraced the practice method. I am one of less than 20 attorneys in Escambia and Santa Rosa County who is trained in collaborative family law. At the moment, training or certification is not mandatory. However, the Florida Bar has regulations pending. The program I attended exceeds the anticipated training requirements, and I will be grandfathered into collaborative practice. Soon, other attorneys will need training in order to offer the service. Those of us in Pensacola are enthusiastically seeking collaborative cases and educating the public and our colleagues.
My personal philosophy has evolved to recognize that the profession and our justice system is broken. Collaborative practice is the most viable solution at the moment. I won’t stand still in a broken system that is contrary to my clients’ best interests. I am moving forward, making a contribution to positive change in the profession. If a better method develops, I will evolve again, and again, until the human race has no need for assisted dispute resolution…or retirement, whichever occurs first.
“Are you saying you’re somehow better than me because I like being a trial lawyer?”
Of course not! I am currently a litigator. There are attorneys that genuinely enjoy the process of litigation, and that’s ok. The world needs litigators, for now, but my law degree is not a mandate to also be one.
There will be collaborative cases that fail to reach an agreement, and the parties will need to seek out a litigator. And some cases, for example, divorces that involve domestic violence, may not be appropriate for collaboration. I am glad to refer those cases to others, in the same way that your nurse practitioner may refer you to a surgeon.
Will the litigators make more money than I in the course of our careers? Maybe. Will surgeons earn more money than general practitioners? Maybe. Different focus areas will naturally earn different salaries. For sure, we all want and need to make a living. However, this is not a financial decision. It is a philosophical decision.
“HOG WASH, young whippersnapper jurist! Collaborative Law will never come to our town. Viva la Rules of Civil Procedure!!”
Really? Back in the 1900’s, they said the same thing about arbitration and mediation. Now it’s mandatory in almost every case. The Florida Legislature just passed a bill governing collaborative family law, and the Florida Bar is soon to adopt rules to regulate collaborative practice. The past and the president-elect of the Florida Bar are both collaborative attorneys. The past 8 Florida Bar Family Law Section presidents are collaborative attorneys. Fourteen of us from Pensacola are trained and taking cases. There were approximately 75 attorneys total at the training. This is happening. Get on board, or get behind.
At the risk of sounding ageist, I find that the collaborative law naysayers tend to be the older generation of lawyers. That makes sense. Change is hard. It’s been a minute since I was last invited to a “young lawyer division” happy hour, but I at least went to law school in the age of electronic legal research and Microsoft Word. My personal impression is that the younger generation has a different approach to conflict – they avoid it. The legal profession will inevitably change to accommodate the less adversarial personality of the Millennial and post-Millennial generations; after all, it is those young people who will soon be running our bar associations. You’re a fool to think otherwise. Though some commentators may see an aversion to addressing conflict head-on as a professional deficit, Millenials would argue that they recognize that conflict is wasted energy and that the world will be a better place if we could just get past the pointless distractions and get on with solving the problem. Kumbaya? Montessori? Yes. Why is that a problem? There is nothing good about being an obstinate jerk who is never wrong and who can’t at least validate that another person has a unique perspective.
Every time I pick up the Florida Bar News or the Florida Bar Journal, I see some comment or article about the profession in crisis. The focus is always on the excessive number of attorneys, legal education, and access to justice. Though student debt is a multi-career problem and the surplus of attorneys exceeds a financially-abled client pool, reshaping the adversarial process into a collaborative system will ease court dockets, a larger client pool will develop with the reduction of litigation costs, and the larger client pool will provide work for more lawyers. The process is also well suited for legal aid clinics, thereby addressing the issue of access to justice.
Florida’s decision to create self-help kiosks and approved family law forms is not a solution. It is difficult to discern whether these “helpful” options create more problems, given that the instructions are overly complicated for the general public, and they say little about the logistics of dealing with any particular local court. Local technical procedures are half the battle. I have cleaned up a number of messes created by well-intentioned pro se litigants. These tools only address the symptoms of docket stress, not the underlying problem – the entire philosophy of dispute resolution.
Attorneys spend too much time complaining about the problems of the profession but never affect meaningful changes – another study here, another study there, maybe a new rule – yet, the same adversarial system keeps up the communication and human relations shortcomings that cause everything that makes us the most miserable professionals on the planet. Collaborative law is an open door that could be a game-changer. Enjoyment of the practice of law is within reach!
In our law practices, we attorneys have a choice. We are not obligated to behave as expected or to keep up an antiquated system. So why do we? Each of us can make conscious decisions, within the comfort of our offices, to change the profession. We need only lead our clients down an easier road. My choice is to be a problem solver or even better, a problem preventer. I will no longer contribute to the creation of negative emotions and energies in my clients’ lives. My office is not an arsenal of vengeance against the other party. I am not a person who will manipulate the technicalities for your benefit just so you can get the last word, especially if we both know that your position is wrong or immoral or contrary to the best interests of your children. I am not that guy. My goal is to solve your problem in a way that salvages relationships (or at least doesn’t make them worse) so that you can move forward in peace. If you come to me with a serious legal issue, I want to help you into a better position, and that includes your emotions. Litigation cannot help your spirit. The collaborative techniques may even teach you something that will benefit you in managing relationships for the rest of your life.
So what types of cases will I be taking after August 1, 2016? All of them. The only difference is that I will manage your legal problems with proactive transactions and collaborative dispute resolution methods, rather than through the traditional adversarial process in court. Take it or leave it, that’s what my shop offers. If you need a “shark that’s gonna make that jerk regret it ,” or you’re “not gonna negotiate anything and will see that cheating bastard in court,” then I’m simply not the attorney for you. If you don’t call me, it won’t hurt my feelings. Instead, I’ll sleep easier, knowing that I didn’t help you bring more negative chaos into the world.
Give me a chance to show you a better dispute resolution option. I am one of a few trained collaborative family law attorneys in Pensacola, Florida, and I want to help you. 850-607-6879