COLLABORATIVE FAMILY LAW – ALIVE AND WELL IN BOULDER COUNTY
By Daryl James©
October 7, 2004
You may have heard of it. You know, that “touchy-feely” idea that two divorce lawyers can sit together in a room with their divorcing clients and, without threat of judicial intervention, come to an agreement. That two strong advocates, used to arguing their cases in court, can work without the threat of litigation and still reach a fair outcome in a divorce.
For those of you that have not heard the news, it is called collaborative family law. The practice is alive and well in thirty states, Canada, the United Kingdom and other countries. At the core of collaborative practice is the agreement made between the spouses and their collaborative lawyers that they will pursue their highest long-term enlightened interests. They do this through an enforceable stipulation forbidding litigation during the pendency of the collaborative process, which itself consists of a series of four-way meetings focused on mutual problem-solving. Call it the “team approach” to divorce, in which the lawyers are committed to working together to achieve the legitimate interests of both spouses in a fair, non-adversarial way.Having read the above, you might wonder just how such an approach could ever work. After all, aren’t we bound to zealously represent our clients? Doesn’t our history of adversarial legal representation in turn bind us to strive, as adversaries, to win for our clients? But then what is "winning" in a divorce? Years of practice show this to be an idea in search of a reality. When litigated, one spouse's "win" is generally the other's loss. Even the current win can lead to later loss, when the aggrieved spouse comes back for revenge.
In collaborative practice, the idea of winning is simple. When both spouses work together to achieve a resolution which meets their needs (not necessarily their wants), protects their children, and maintains their integrity, both sides win.Collaborative practice was first created in Minnesota during the early 1990’s by a divorce practitioner who sought a way to minimize his clients’ suffering in divorce. His name is Stu Webb, and his seminal effort has led to the creation of groups of lawyers across the country committed to promulgating collaborative practice. They do so because the model works.
Any new technique of dispute resolution should meet with some skepticism. The usual criticism of collaborative procedure is that there is no judge to make a decision when the parties simply cannot agree. If the spouses arrive at loggerheads and one or both want a trial, they then have to fire their collaborative lawyers and start all over again, at great cost. This is a natural objection for a lawyer to make. We are, after all, trained to predict what can go wrong with each and every transaction we examine. The objection begs the larger question of just what exactly we get for our clients when we take the case to the judge. In the end, we get a decision, not necessarily a resolution, and we have all had experience with judge-imposed decisions which did nothing to end the underlying dispute. While a collaborative approach may not work in every case, it at least gives people a chance to talk together and find their own solutions, and to understand and perhaps make peace with each other. If they are successful, they can avoid some of the worst aspects of divorce, not the least of which is long-term enmity with a person that once was considered a life-long partner.
A good family lawyer treats the court as the decision-maker of last resort. Collaborative practice simply takes this wisdom a step further. Skeptics in the community who are old enough to remember the birth of mediation may also remember a certain dubious feeling about wasting client money on a process that would just delay the inevitable, lawyer-driven result. The same skeptics would have to acknowledge that many cases are resolved today in mediation, many with neither party represented by an attorney. How do they do it without us?!
Nonetheless, most divorces in Boulder County are done without us. The clerk of court for Boulder District Court estimates that 75% of divorces filed each year are pro se. Moreover, most attorneys with a few years experience have heard from people who only want a little advice, preferring to keep lawyers out of the case because they fear lawyers will only make the conflict worse. Many of these people could be helped through a collaborative process, by getting expert legal advice in a nonadversarial setting.
But enough about clients. What’s in it for the lawyers? For starters, the possibility of working in a cooperative manner with our colleagues. “But I am cooperative,” you say. Sure you are. Consider, however, what “cooperation” means when it is offered or received coupled with the implicit threat of litigation. In the end, it is cooperation offered with a manipulative end goal in mind. This comment is not meant as condemnation. It is simply the reality underlying our dealings with each other. Of course, a sense of collegiality tempers the adversarial nature of the relationship. Still, what two lawyers do in a litigated divorce can hardly be described as a team effort. Collaboration offers the possibility of really practicing on a team.
Next, it offers the possibility of lowering the stress of practicing family law. No deadlines, no formal discovery, a commitment by all involved to reach for their highest goals and best behavior. Is it too good to be true? If so, why has it spread from one man to thirty states in less than twenty years?
After almost twenty years in a family law practice here in Boulder, I have met most Boulder family lawyers. We may have clashed on occasion, as we represented our clients as well as we could. Like most trial lawyers, I relish taking a challenging case to court. After all, I am trained to do just that. So why would I consider practicing law in a manner that forbids my going to court for a client? The answer is that I believe the collaborative process offers the right client a better, more lasting resolution. Since I am also trained (and inclined by my nature) to care about what happens to my clients, this is worth pursuing.
Interested? Be a part of the Boulder Collaborative Family Law Pilot Project. Join the collaborative meetings which happen almost every month here in Boulder County. Participate in the Boulder trainings which began last November, and continue with another on November 19, 2004. These are focused on training lawyers in the skills needed to get, keep and complete a collaborative case. As you might expect, it requires a different way of dealing with clients. Once you try it, you may never go back.
For further information on upcoming trainings, call Daryl James at (303) 447-9688 x15, or Kathy Franco at (303) 579-8676. For information regarding practice group meetings, call Todd McMillen at (303) 665-5575 or Dana Matthews at (303) 442-6514.