CHAPTER TITLE: Challenges and Complexities of Being a Collaborative Lawyer
This chapter seeks to outline common challenges associated with being a practitioner and proponent of the collaborative law process and address how the UCLA is helpful in mitigating these challenges.
The primary challenges examined include a lack of awareness of the collaborative process due to inadequate public education and community understanding, a lack of uniformity in acceptance of collaborative resulting from a myriad of different interpretations and misinformation about what the collaborative process is, what it allows practitioners to do, and how it protects clients rights leading to a mistrust/misunderstanding in the legal community which spills over into public awareness. The UCLA strives to alleviate these concerns by striving for greater uniformity in interpretation, addressing professional conduct and responsibilities, and protecting client rights.
Keys to success in the collaborative process (including communication on the professional team, informed consent and realistic expectations of the process by the clients, and the engagement of trained professionals who understand the potential pitfalls of collaborative and have uniformity in their interpretation and practice of the process) are examined and illustrated through case studies in the context of the UCLA.
Common Challenges Associated with the Collaborative Law Process
The greatest difficulty in working in the collaborative law process has been awareness. So often, when we conduct seminars, people come up to us and say “Wow! The work you are doing is truly amazing. I wish I had known about it X years ago when I got divorced!” Litigation is so engrained in the minds of the public as the way to obtain a divorce that most people do not even know they have other options under the appropriate dispute resolution umbrella.
The collaborative divorce process is a unique problem solving process that enables couples to resolve their issues of divorce without going to court. The cornerstone of this process is the use of an inter-disciplinary team of professionals who help the couple in all aspects of the divorce—legal, financial, and emotional. Each spouse retains their own attorney specifically trained in the Collaborative Divorce Process, whose goal is to help create a workable settlement that protects the family from the damaging effects of conflict. The team of professionals guides the couple to deeper and longer lasting resolutions through educated decision making focused on the family’s particular needs rather than forcing the typical cookie-cutter divorce judgment.
Luckily, in recent years, awareness of the collaborative law process has been growing. However, as awareness grows, so does adversity, usually from the legal community itself rather than the public. Because collaborative practice requires an entirely different mindset from what attorneys are taught in law school and shifts the power from the hands of judges and the court back to the divorcing couple, there is mistrust in the legal community. Of course, litigation is also far more lucrative for attorneys. This is not to imply that this mistrust and adversity is uniform—which in itself poses a challenge. The acceptance of collaborative practice varies from county to county and judge to judge. Our firm has received letters praising the collaborative process from one county and faced roadblocks and hoops in the court of the neighboring county. Never knowing what kind of resistance will be encountered makes it difficult to set accurate client expectations and do the work we do.
This is why the enacting of the Uniform Collaborative Law Act (UCLA) is so helpful—it raises awareness and sets standards of uniformity to help address the two biggest challenges the collaborative community faces. The Act seeks to overcome resistance in the legal community by placing collaborative practice legally on par with the traditional litigation methods. The main components of the Act seek to guarantee professional ethics are upheld in the collaborative process (as they would in litigated cases) so that clients choosing this process feel their rights are protected. The Act also contains provisions requiring collaborative practitioners to get informed consent from the parties prior to engaging in the process so that expectations are clear and clients understand both the advantages and potential disadvantages of not only collaborative, but all their other options. Furthermore, because of the team approach and transparency necessary for the effectiveness of collaborative, the Act addresses how confidentiality is to be handled in these cases and seeks to ensure uniformity in interpretation by practitioners of what this means. Finally, the Act’s overall purpose is to ensure the legal enforceability of a collaboratively derived settlement, given standard criteria and all of the other provisions of the Act mentioned above have been applied.
The UCLA was drafted and approved by the Uniform Law Commission in 2009. Thanks to the hard work and dedication of many members of the Collaborative community, the Act has since seen six successful enactments: Ohio, District of Columbia, Texas, Hawaii, Nevada, and Utah. As dictated by the Uniform Law Commission, each state has a choice whether Act application will be limited to family law matters, or to enact the UCLA with no limitations, allowing use of the process for all civil matters. Most of the enactments have limited usage of the Collaborative Process in family law. However, Hawaii and Nevada have allowed parties to elect the Collaborative Process for all civil disputes.
Currently, bills have been introduced in Oklahoma, Washington, Illinois and Massachusetts and news of their successful passage should be forthcoming soon. Active work toward UCLA passage is being done in Pennsylvania, Alabama, New Mexico, California and Michigan. The recent string of enactments and other UCLA activity will hopefully inspire all practitioners to work toward enactment in their area.
Ultimately, I believe that the strongest “weapon” against resistance to collaborative law is education. Humans tend to distrust anything new and be wary of things they do not understand. It is important for the collaborative community to educate not only the public, but also litigating attorneys and judges. Interestingly, one of the largest client bases for the collaborative process for divorce in my firm have been litigating attorneys. They understand the perils of litigation and the court system better than anyone, and understand the benefits to choosing a process like collaborative law for their family’s future.
As with many other fields, word of mouth is one of the most effective means of advertising collaborative practice. Satisfied clients tend to feel ownership in the process and pride in having accomplished the difficult work of putting together their own settlement for the good of their family. These clients, particularly if followed up with effectively, can easily become ambassadors of collaborative practice.
Handling Complicated Divorce Cases Through Collaborative Law
One of the most complicated divorce cases I have had involved two college professors with four minor children. The husband came into my office looking to get the divorce over with as quickly as possible. The wife, however, had no idea a divorce was coming. The husband consulted with several litigation attorneys but did not want to adopt a scorched earth approach to litigation, nor the expense of one.
After I explained all of the various options for getting a divorce, including the collaborative divorce process, the husband expressed his desire to be able to co-parent successfully once the divorce was complete, and stated that he wished to proceed with the collaborative process. I explained to him, as I do all of my clients, about the full and open disclosure that we use in the collaborative process. I informed him about utilizing the collaborative process to deal with the “elephants in the room” so that both parties could address difficult issues and work together to resolve them.
At that point, the husband had no idea how to break the news of a divorce to his wife, and as you can imagine, the two did not communicate very well. I referred the husband to a divorce coach for some help in discussing the issue of divorce with his wife. I explained to him how a collaborative divorce coach could help him find the right words to talk to his wife about a divorce, and could also at some point meet with both parties to explain the collaborative divorce process to the wife. As a result, the wife might be more receptive to learning about the collaborative divorce process because the information was coming from a mental health professional rather than the husband’s attorney.
This plan seemed like a good one until I received a frantic call from the divorce coach letting me know what happened in the meeting. It turned out that unbeknownst to any of us, the husband neglected to follow our advice about how to tell his wife about the divorce and instead booked an appointment for both of them to meet with the divorce coach. He told his wife that they were meeting with a marriage counselor. As they were walking into the office and the divorce coach was walking up to meet both parties, the husband announced to the wife that they were not there to talk about saving their marriage but rather about getting a divorce. Thankfully, the divorce coach was highly experienced and was able to calm the situation and have a very informative talk with both parties about their options. The wife was willing to meet with a collaborative attorney (as well as several major litigating attorneys) to determine if the collaborative process was right for her. She did so, and the collaborative attorney was able to explain the pros and cons of collaborative law as well as litigation to her in a way she could understand and so that she could make an informed decision regarding her plan of action.
We started the collaborative process with the couple and utilized a team consisting of the two collaborative attorneys and two divorce coaches. After a couple of meetings with the respective professionals, the husband dropped his next bombshell. He told his divorce coach that he had been having an affair and his mistress was pregnant. No one saw that coming. It now dawned on me why he originally asked me so many questions about the full disclosure part of the collaborative process. It turned out that several litigators had advised him to hurry up and get the divorce, and hope that his wife would never discover the affair until everything was finished. The husband admitted later that his plan was to do just that—wait a year or so after the divorce and then magically introduce his new toddler to his other children. In listening to me explain the concept of full disclosure and hearing the various examples I typically use during my initial consultation, he realized that he would never be able to continue to co-parent effectively once his wife learned of his other child. It would be obvious that the affair had taken place during the marriage, and that, therefore, even their divorce was built on lies.
With the husband’s permission, we informed the collaborative team. Then the two divorce coaches scheduled a four-way meeting with the husband and wife and facilitated the discussion between the parties. Yes, there were tears and probably some yelling, but after a few more meetings, the husband and wife had begun to address their emotional issues.
Once they’d dealt with the emotional component of the case, the husband and wife were able to return to the collaborative attorneys to negotiate the legal issues. With the help of the team, who continually explained the various possible legal arguments on either side, they put blame and fault aside and reached a settlement that worked for their family. In the end, time helped to heal some of the wounds, and the tools for open communication that each party learned in the collaborative process helped this family function. The divorce was completed, the husband married the other woman, and a healthy baby joined the family.
Two years following the divorce, once some of the dust had settled and both parties started feeling “normal” again, the former husband and wife independently contacted each of the team members and thanked them for their work. As painful as their divorce had been at the time, they were able to continue to co-parent successfully. As time passed, each party realized this never would have happened had either of them litigated the divorce.
Another difficult collaborative law case involved very moneyed clients with complex assets and a long-term marriage. Addiction issues and suspicions of an affair plagued the process, with the husband, who had a very strong personality, asserting himself, trying to control the process, and attempting to intimidate the professionals on the team with his narcissistic behavior and angry outbursts. The wife, on the other hand, was very proficient at pushing buttons and then playing the victim. Thankfully, we had a cohesive, well- trained and very experienced collaborative team working with this couple. Throughout this case, all team members kept in constant contact with each other and coordinated consistent messages to both spouses regarding all of the various aspects of their case. For example, when an issue would arise, the team would briefly conference to determine the type of issue (e.g., emotional, legal, financial) and then coordinate which professionals would meet with the clients to resolve the issue. This not only showed the clients that the team was managing their problems appropriately, but also showed the team that we could work well together and all be on the same page.
During the four-way legal meetings, attorneys gained each spouse’s trust by utilizing inquiry-based communication techniques to gain a full understanding of the other spouse’s needs and interests. As each spouse experienced examples of “opposing” counsel’s desire to understand his/her individual needs a noticeable calm started to fill the room. Both clients expressed gratitude for finally feeling as if they were being heard and understood. The husband became less combative and the wife started clearly expressing what was really important to her, rather than maintaining her former habit of keeping quiet and harboring resentment—which, in the past, would then lead to increasing the power imbalance.
After our final meeting, during which with the help of a full team we were able to reach agreement on a settlement, the wife profusely thanked the team for their work, helping her find her voice, and minimizing the imbalance of power which had existed in their relationship as a couple for many years. The husband expressed his relief that a settlement had been reached, and both spouses were intact and functioning both emotionally and financially. No one was left to eat macaroni and cheese, and no one killed the golden goose to reach a settlement.
Effective Strategies in Collaborative Law Cases
One of the best predictors of a positive collaborative law case outcome is the dynamics of the team of collaborative professionals. When the professionals have all had collaborative training, have a full understanding of the process, a similar outlook as to an ideal outcome and the role of each professional, as well as a willingness to participate in information exchanges, it is far easier to navigate the difficulties in a case. A united front is imperative when helping a couple who is experiencing turmoil or uncertainty in the process. The enactment of the UCLA aids this in that it provides a set of rules and guidelines for all professionals to follow, eradicating the problem of varying interpretations of what is ethical and allowed within the collaborative framework.
Collaborative attorneys need to understand the neuroscience behind decision making and how trauma, such as a divorce, significantly affects one’s ability to think clearly. In my initial consultation with a client, I explain to them what is really going on in their brain from all of the stress they are under and how that affects their ability to make rational decisions. Explaining the effects of stress and normalizing how the client might be feeling goes a long way towards helping the client to feel better. It also begins the process of building trust in the relationship between the parties and helps them learn how to relate to each other. Teaching clients to understand how they and their spouse make decisions can be just as important as the decision itself. Once clients learn this, they can make future decisions more easily. Also, clients need to learn how trauma and stress lead to irrational thoughts and decisions. People often jump to a decision just to relieve some of the pain they are in, and this is even done unconsciously. Understanding this and learning how to avoid these pitfalls will enable couples to work together to reach deeper resolutions, have ownership in their decision making, and have longer lasting agreements.
Beyond that, it is important to be a good listener, not only to words, but also to intentions and other cues. Collaborative professionals need to understand the current emotional state and abilities of both of the parties. Just like a trauma unit, collaborative professionals need to first prioritize and then address the issues that are important to each client. We need to meet the client where they presently are and help to bring them along to where they need to be emotionally in order to enable each party to make his or her own sound decisions. We cannot rush or overlook this process.
The interdisciplinary team working in a collaborative practice enables the emotional journey to happen. The divorce coaches work with the collaborative attorneys, and any other team members involved, to deal with emotional issues directly rather than inappropriately turning them into legal issues that prolong the fighting. The same thing happens with respect to financial, legal, and child-related issues.
When we see divorcing clients, most often, we are seeing good people at their worst. It is important to consider where people are coming from and what their motives may be. In cases in which a client is focusing on anger or revenge, or their actions do not stand up under close examination by the team, it is also important to be able to navigate the line between curbing bad client behaviors and still being a sounding board and advocating for your client. Successful strategies in doing this include re-evaluating and reminding clients of their end goals and how their behaviors affect their children and families as a whole, as well as comparing potential outcomes in the litigation process and highlighting the advantages of creative solutions which are possible in collaborative practice. While doing this, it is important to help clients understand the difference between intellectually based thoughts and emotionally charged fears. This is another example of where the inter-disciplinary team can be so effective by having clients do this work with the appropriate professional in addressing the particular need (financial, emotional, legal). Eventually, the parties learn to do this themselves when future issues arise or, at the very least, they now know of a more effective way of finding answers by returning to the collaborative process.
Collaborative Law Training
Training provided by local, state, and international groups is an invaluable investment. As the collaborative community seeks to educate others, practitioners should also take the time and put forth effort to educate themselves and work with others to establish “best practice” policies and learn effective strategies for coping with any difficulties which may arise in order to provide the best possible experience and outcomes for clients.
Unfortunately, there are attorneys who have seen the public’s enthusiasm for collaborative law and have sought to capitalize on it without obtaining the proper training. This has sullied the name of collaborative law, as most often, these attorneys actually end up practicing, at best, friendly litigation. The divorcing couple misses the opportunity to reach the deeper resolutions that become possible with experienced and trained collaborative professionals who are better equipped to work with the “elephants in the room.” The enactment of UCLA would help in defining what collaborative practice actually entails and deterring these types of situations.
Handling Cases Where the Parties Cannot Come to an Agreement
The divorce process is 10 percent legal, 10 percent financial, and 80 percent emotional. In cases in which we are having difficulty reaching an agreement, we ensure that we have addressed the underlying emotional factors as fully as possible by insisting the clients both make use of divorce coaches if they were not doing so already. If the coaches are unable to help or the parties resist utilizing their services, the remainder of the team conferences in order to find a strategy we can agree would be most effective for the particular clients. This often includes diagramming what concessions each side has made, how far the couple has come in reaching an agreement, and drawing their attention to the costs and potential pitfalls of falling out of the process in favor of litigation. In the collaborative process, we have only our imagination to limit us. Brainstorming and thinking outside the box often lead to amazing settlements. Addressing people’s needs and interests instead of their positions leads people to reach agreements. Experienced Collaborative professionals continually hone their skills with advanced training including understanding the neuroscience behind how people make decisions, and have a whole tool box of creative ways to help them get there.
On occasion, we have experienced clients who terminate the process because they feel they are not getting enough out of it, only to go into litigation and end up with a less favorable outcome than anything their former spouse offered or agreed to within the collaborative process. We have even had clients get back in touch with us to express regret at their choice to terminate the process and thank us for our work while they were in it. It is too bad couples do not have a crystal ball or cannot be cloned when they start the divorce process. So much could be learned by following a couple as their divorce progresses through each of the processes. No one ever knows what might spark a war in court and how to address it ahead of time— unless they learn to talk about those elephants in the room.
I am hesitant to decide for my clients that their positions are irreconcilable. In a process as open as collaborative law and as allowing of tailored and creative problem solving and brainstorming, there are so many possibilities for new solutions and seeing things in a new light that it is really the clients who end up making the decision to turn down these options and remain firm in their positions. I always turn my client’s attention to their end goals and what outcome they told me they wanted for their children and family at the beginning of the case. I try to re-examine both parties’ stated positions, as well as their underlying needs and wants to determine how these relate to their goals and which routes are likely to have the best outcomes. Again, knowledge is power. The better our clients can understand the consequences of their decisions and the more options they can see, the more likely they are to make the right choices for their long-term happiness.
I always strive to be honest with my clients about their options and try to provide the most honest and accurate prediction with respect to the potential outcomes of each scenario as possible. Utilizing open communication, I ask the clients to re-assess their goals and priorities and advise them of the routes they can take. As informed consent is imperative to my practice with every initial consultation and at the beginning of the case, it is also important for me to maintain this informed consent and educate my clients to enable them to make the best decisions possible, even if they are falling out of the collaborative process. The Uniform Collaborative Law Act requires all collaborative professionals to take the time to explain all the options (potential positives and negatives of each process and each option at any given point in the case) to their client, so that the client is fully informed and is making an educated and thought out decision when consenting to elect the collaborative process to settle their dispute, and as the case continues, to remain in the process because they truly believe it is the best option for their family.
When to Recommend Litigation
In cases in which there is abuse or a stark disparity in balance of power between the spouses which the team is unable to overcome or address, the case may not be able to continue in the collaborative process. Similarly, if one of the team members becomes aware that one of the spouses is failing to disclose assets or misrepresenting facts and that spouse refuses to acknowledge that and reconcile their actions, the collaborative process would be terminated and litigation would most likely follow with new attorneys.
Depending on the specific client’s needs and desires going forward, I try to steer them toward attorneys who will respect their work in the collaborative process, and make the transition into the court system and litigation as smooth as possible. I usually try to counsel the client on qualities and qualifications to look for when interviewing alternate counsel, and highlight the importance of working with someone who they feel comfortable with and can trust. I also believe it is important that the client have a realistic idea of what to expect from litigation and the court. Particularly in family matters, clients need to understand that decisions will be made one way or the other. The only way to get a divorce is to have decisions made. These decisions can either be negotiated by the divorcing couple or ordered by the court. Justice Hedley, a High Court Judge in the UK offers this enlightening quote: “There are only two ways forward: either the adults take charge of their family and agree how it is to be structured and run; or, the court imposes a structure to which the parties are required to give compliance, however grudgingly. I repeat what I have said before: they are much more likely than I to know what is best for their children; the court order is made only because those who hold parental responsibility cannot or will not exercise it to obviate the need for an externally imposed solution.” I personally think this means that ultimately, no one is happy in court.
Mistakes to Avoid During the Practice of Collaborative Law
There are several mistakes that can and show be avoided during the practice of collaborative law:
The upcoming years will prove most interesting as practitioners in the collaborative process band together to extend the scope of the UCLA. There is work being done across many states, the fruit of which will probably not be evident for several more years. Though some of this work may be met with resistance, the rewards of overcoming this resistance and working toward widespread adoption of the Act far outweigh the potential difficulties. The UCLA and the adoption process itself address the challenges of collaborative practice as outlined in this chapter:
Awareness and Education: In this arena, resistance to the UCLA and collaborative law more generally can actually work to the benefit of the collaborative community. Publicity and lobbying will raise public and legal community awareness of the existence of collaborative and gives practitioners a chance to educate their colleagues, judges, the press and the public about the process and how it can be beneficial. Furthermore, the Act ensures that clients are educated in choosing the process, leading to better outcomes as practitioners across the board implement mechanisms in their practices to obtain informed consent.
Uniformity in Acceptance: As the Act protects client rights and spells out practitioner responsibility and conduct, the resistance and distrust of those more comfortable with the traditional legal views and methodologies may be put more at ease. As protocols are standardized and practitioners themselves gain a more uniform understanding of the process, its rules and it’s implementations, collaborative law will become more “on-par” with traditional litigation in that it will more stringently controlled and monitored, increasing it’s credibility.
Our community has already made great strides and vastly grown since Stu Webb created the ideals of collaborative law in the 1980s. In today’s global information environment, we have so many tools we can use to continue to expand the scope of our work and the dynamics of dispute resolution.
Max & Diane August, Your Personal Guide to a Successful Collaborative Divorce: What Everyone Going Through A Collaborative Divorce Needs to Know to Get the Best Possible Outcomes (Create Space Independent Publishing Platform, 2012)