Once in a blue moon a new client will say something like, “I’ve heard about something called collaborative divorce or collaborative law. Is it any good?” What I write here is the same information I continue to give them, for better or worse.
Full disclosure: I regularly engage in mediation and settlement negotiations but not collaborative law its truest meaning. I have been willing and discussed the possibility with clients. Ultimately, my clients elected to resolve their cases through more traditional means.
For those who are unaware, collaborative divorce means deciding terms of a divorce by agreement rather than through court. Collaborative law is the most apparent variety. Parties involved in collaborative law typically hire attorneys but hope to bypass contested court proceedings entirely. To better incentivize the parties and attorneys, they sign an agreement requiring the lawyers to withdraw if either party files for divorce prior to settling.
Around 2008 collaborative law was an especially hot topic, at least where I practice. Most editions of our county’s legal magazine ran articles on the subject, and many respected divorce attorneys spoke of it as the future of family law.
Enthusiasm waned thereafter. I do not have statistics on how many people still engage in it. More importantly, I searched and could not find any statistics on the success rate – the percentage of cases that settle before court. The rest of this article relates my opinions.
1. Effective Financial Motivation, Theoretically. Admittedly, I am an unabashed fan of the collaborative law agreement – requiring attorneys to withdraw if either party petitions before settlement. It ingeniously rearranges the participants’ financial motivations. Normally attorneys would have little monetary reason to settle cases, because they make more through ongoing litigation. Perhaps as a result, divorce and family law attorneys often lose their tempers and communicate abruptly and confrontationally with the opposing side. The collaborative agreement changes that motivation entirely. The attorneys have pecuniary motivation to gently express their thoughts and settlement offers, because playing nice allows them to continue working the case.
Similarly, the collaborative law agreement gives the parties strong economic incentive to settle. Firing existing attorneys and bringing new ones up to speed for litigation costs many thousands of dollars. Presumably parties want to settle to avoid that.
2. Incorporating Experts. Another weighty benefit of collaborative law is its culture of incorporating experts to help the parties find win-win solutions. For example, they might bring in an accountant to help structure the settlement more tax efficiently.
3. Fewer Negative Emotions. Perhaps the most significant advantage is emotional. Divorces can be among the most stressful events in people’s lives. Reaching agreement before court should mitigate that stress. It should also make it easier for parties to coparent if they avoid the disparagement common in divorces hearings and trials.
II. The Problem.
There might be a problem or several problems with collaborative law given the waning interest in it. I suspect poor timing. If early mediation success rates are any indication, collaborative settlement rates are low because of the distance from trial.
Early mediation is when parties and their attorneys hire a mediator to help them reach settlement toward the beginning of a court case. According to the most practiced family law mediator on our firm’s geographic area, early mediation results in settlement only about half the time. By comparison, late-stage mediation with the same mediator results in settlement upwards of 90% of the time. Our firm’s experience with mediation confirms these statistics. When attempting to settle a family law case, proximity to trial may be the most significant variable.
If settlement rates are low, it would make collaborative law an especially arduous and expensive proposition. According to a collaborative website, the collaborative law process takes about eight to 14 months with costs totaling $25,000 – $50,000 per couple. Though collaborative attorneys claim otherwise, that would approach the average time and cost of a the traditional divorce process. In other words, unsuccessfully attempting collaborative law nearly doubles the time and expense of getting divorced.
That probably strikes many potential clients as too much, especially when put in context of total settlement rates in traditional divorce litigation. Only about 5% of cases proceed to trial anyway, with 95% settling or reconciling.
I assume collaborative law still has a place – and a very comfortable place at that. Many well-healed and/or (in)famous individuals prefer a discrete resolution process, tucked away from public view. And they are willing to pay for it, even if it more than doubles the cost.
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