Pitfalls, Problems, Cons of Collaborative Law Divorce
In this section, the pitfalls, problems, and cons of collaborative divorce are presented. These were formulated by the Author based on his case and his understanding of CL and divorce in general.
Lawyers churn the case: This particular item may not be much different than a non-collaborative case, because in all cases, the more invested you become with a particular lawyer, the less likely you’ll want to change – fearing the loss of effort, time, and expense. In a court case, a new lawyer can take over without completely disrupting the process. However in collaborative cases, a failure causes a complete reset to the beginning[footnote: Actually, a collaborative lawyer can remove themselves voluntarily without voiding the contract and the spouse with that lawyer has to find another to replace him], and the work, time, and expense invested is forfeited by both spouses, because the collaborative work may not be acceptable to use in court. To add insult to injury, one attorney told me that the nastiest and most bitter court cases are often collaborative cases that have failed, since the parties “put it all out there” in the initial process and feel extremely frustrated and angry at each other when it fails.
The theory behind “the lawyers are fired if it fails” is to put incentive on the parties to finish, and it certainly does this. But similar to many other things, there is no way to legislate morality, and the incentive also can double as a “hook” that the lawyers use to take free license to run the case as they please and ratchet up the bills in the process. My case cost approximately $55,000 between the two of us, (Prenup, no children, short marriage) and that is a far cry from “low-cost” as advertised. (See Fee Parity) (See Presentation showing avg length for CL case 6 months) Given that the attorneys have NO stake in the outcome, and the parties are bound more tightly to the process by fear of its failing, the collaborative law divorce is ripe for abuse by unscrupulous lawyers to churn the case for extra dollars.
Here is how it worked in my case: The start of the process was very civil and followed the advertised procedures. The community property division was not an issue in my case and we really had only a single contentious issue going into the process: spousal support. The case was immediately complicated by my wife’s attorney declaring “nothing is settled until everything is settled.” In other words, the parts of the settlement that we agreed upon were going to be used as new bargaining chips in the support argument. What possible reason could be used to justify this? (PG 6.01) Placing everything in the settlement up in the air again confuses the main issue and requires more lengthy discussions or negotiations in order to settle, and such practice probably falls outside of good faith negotiations required in CL (PG 6.01). And any time we applied pressure on one item, something else would pop out (like pushing on a balloon). Another attorney I spoke with called this the “silly putty” negotiation, where nothing is ever solidified, leading to a state of constant confusion and frustration. Clearly, if you have ten items to settle, each should be settled and locked down in some order to make progress. While one may affect another, there is still no reason to leave everything floating until the day of the signing. This is just a negotiation strategy to exasperate the other party and it is clearly not “good-faith negotiation” as required by the collaborative guidelines (PG 6.01).
An attorney may refuse to work in quantitative terms at all. When I tried to prepare an outline of where my settlement stood in order to see how close or far apart we were on the negotiations, the opposing attorney refused, saying it would not represent a “congruent perception of interests” – another phrase from the bottomless lexicon of the collaborative lawyer. Make up a phrase, get an excuse. It took almost four months of requests, refusals to meet, badgering for us to simply get a counter proposal from the other side using these unscrupulous tactics. Once again, this may occur in a regular litigated case, but it is completely against the goals of a “collaborative” divorce, and wholly un-collaborative!
Other techniques used to churn the case and keep the parties online include making long legal arguments for certain points, creeping terms, last-minute terms, and other hardcore tactics that all go against the idea of the couple peacefully negotiating a settlement. What is dangerous about collaborative is that the arguments need not be legal at all, but just pulled out of a hat of collaborative-speak terms! Additionally, being bound by the high price of failure gives the (unscrupulous) collaborative attorneys an edge by being able to prolong the process once the clients are sufficiently invested.
Isolate the parties: In my case, when we started the process, we were amicable and talking to each other regularly. In our case, after a short time and one contentious four-way meeting, I was instructed (specifically: I was told by my lawyer, that my wife’s lawyer told him that my wife wanted me) to no longer contact my wife about the divorce at all. While it is difficult to determine whether this was really a request made by my wife, or one made at the advice of her lawyer, it clearly limited the communication we could have and progress we could make. My wife continued to call me when she wanted something, but I was scolded for contacting her. This occurrence was the first sign that the collaborative setting was either being manipulated or it was simply not right for us. However the lawyers encouraged us that progress could be made (In fact, they said at every meeting that “we can probably settle today”, a tasty carrot to offer.) at meetings. At the same time, my wife’s attorney said that we could no longer discuss my “wife’s finances” at the meetings, which is an odd position to take when we were arguing over one thing – spousal support, which depends on expenses and income, i.e., finances! It is relevant to note that, while collaborative law is named after the word “collaboration”, the idea that my wife and I could make any progress or collaborate anywhere out of an $800/hr four-way meeting was immediately put into place. Any student of collaboration would identify that concept as flawed and adversarial.
At one point, after I wrote a letter to the group saying that I thought the “process” was flawed and not providing value, my wife called me and asked me to settle. We had three lengthy discussions on the phone that were calm and constructive. I then asked her to meet me for coffee to see if we could hammer out a deal on our one contentious item. She said she “was not sure”. That evening an email arrived from my attorney relaying a message from her attorney saying that my wife would send me a proposal for what she wanted, and that was followed by weeks of silence. In my opinion, her attorney had advised her not to talk to me and cut off the conversations promptly, but of course there is no way for me to know for certain whether this was the case or whether my wife could not bring herself to meet with me. My speculation is the former mainly because we were talking voluntarily and she seemed motivated to finish. While one can argue that the purpose of the lawyer is to help the spouse in negotiations and provide strengths in that area that the spouse may not possess, in the scenario that my wife was advised not to meet, how can it be argued that discussion between the spouses is a destructive thing when the purpose of the collaborative process is to promote such discussions? No conversation at a coffee shop would be binding, but it might help the parties understand each other better and reach a compromise that could then be examined by the lawyers. In an unscrupulous lawyer’s strategy, all words exchanged have to be at the combined cost of two attorneys. And another note is that such a rational discussion never took place at a four-way meeting (also not binding) either subsequent to these calls! I view that as an attempt to subvert progress by the professionals in the case.
A wolf in sheep’s clothing: In my case, the opposing attorney spent years as a fierce litigator in family law cases(according to another litigating attorney I consulted) . So, it felt like that was more the rules governing the so-called collaboration than anything else. To my point of view, the whole collaborative law case we had was based on the opposing attorney’s strategy of the threat of court and using a loophole to get more money. (See “My Story” section for more details) The collaborative ideal, something that was withheld far away from our case, involves discussions between the parties and at least some connection with the reality of what the law provides. While we discussed need-based spousal support at the four-way meetings, the “need-based” turned into “greed-based” and the needs were not those looking back at the marriage, but more of a shopping list of what my wife wanted moving forward, all backed up by my supposed fear of the court scenario. Hence my wife’s attorney created a strategy that, from the very start, violated the guidelines and goals of a true collaboration and encouraged behavior by my wife to disclose her needs to get whatever she wanted. In summary, if a collaborative attorney is using a litigious approach to the case from the start, then the process can totally break down and not be what you signed up for. You have to recognize this either in your attorney or the opposing attorney and get out fast if you see signs of this.
Collusion and who’s working for who? The lack of implicit confidentiality between the collaborative lawyers and their client, and the fact that such non-guaranteed confidence even if stated in the CL contract (Confidentiality Links) deviates so widely from the general notion of lawyer-client relationships, can create an environment where the client feels that their lawyer is betraying their confidence and colluding with the other side. It also adds to the paternalistic feel of CL where the attorneys are “mom and dad” discussing the behaviour of the kids (spouses). While in a true collaboration, sharing of some information would be harmless and productive, once the case turns south towards a litigious style, the lack of confidentiality becomes a nuisance. I suspected my lawyer of revealing things that I wanted to tell the group directly to the other side before I had a chance to express myself, or he kept advising (almost exclusively) compromises on my part that would aid the other side’s position. As a result, It felt as though he was on the opposing attorney’s payroll and not mine.
When we separated, my wife had already contacted her attorney. She gave me a large packet of information that the attorney had given her and it included a listing of some dozen or so attorneys in the same “Collaborative Group” in our area. My attorney was chosen from that listing, and I actually turned down another attorney that was not on the listing. This turned out to be a huge mistake as far as I can tell. The attorneys on the list supposedly met monthly to discuss furthering the “art” of collaborative law divorce. But knowing one another well and being included on a listing together clearly created a mutually beneficial business relationship between them all. Hence, while my attorney had previously worked with my wife’s attorney and I thought this would be a benefit, it felt much more like it was a deficit later in that he seemed to give in to every demand of my wife’s attorney as if he feared losing the business relationship with her, rather than standing up for my interests and positions.
Failure is not an option: If you fail your collaborative law case, you’ll probably feel hurt, abused and angry. I was tempted many times to quit the process and thereby fire my wife’s attorney, whom I felt had corrupted the process so completely that it was not worthwhile. I thought that if we started over and went a traditional route, we could simply negotiate a settlement using good-faith negotiations or hire a private judge to decide the single contentious issue and still avoid court. However a litigating attorney advised me that, if we failed, my wife’s aggressive collaborative attorney would just hook my wife up with a new litigator who would not negotiate at all, and we’d end up in court with my wife exploiting the temporary support loophole mentioned above to the max. This may NOT be the case for many couples that are more evenly balanced in terms of finances and quitting could be the best option. But if either party fears greatly the court scenario, then failure is not an option.
Someone pointed out to me that, while collaborative divorce sounds nice enough, it does not seem to have a good failure mechanism. This relates to what one of the attorneys I was interviewing said as well, that she does not do collaborative cases because there is no ability to shift into one of the other forms of divorce should the collaboration not work out. If one collaborative attorney advocates strongly and the other does not, the imbalance will be a recipe for disaster despite the attitudes of the clients. And there is nowhere to go without losing a lot of time and expense. Many of the items listed above fall into the same category of the lawyers holding so much power over the process and how that aspect is ripe for abuse. It is also in basic conflict with the promotional descriptions of CL, where the clients run the divorce with attorneys just acting as "guides." See the postscript of Author's story for more actual failure mechanisms...
If you can settle with your spouse then why do you need a “process”? This is an essential question to ask yourself. If you have a relatively amicable relationship with your spouse then one option is a simple agreement or mediation using a single lawyer/judge. The collaborative process was attractive to my wife because, as she explained to me, she felt unable to face me in negotiations without the help of her own attorney. This was a red flag waving that I failed to see, since in a collaborative process, we are still facing off to discuss the difficult topics. The success of a collaborative law divorce depends on the couple being able to discuss topics directly, and if you can do that with your spouse, then perhaps you don’t need a special process! Since there are many varieties of divorce, from self-done to litigation, if you can discuss topics with your spouse then you could also do this with the advice of a traditional lawyer. They key is not letting the lawyers corrode the process or the relationship to the point where you’re locked into a battle with your spouse that you didn’t create. This is a basic pitfall of all divorce – not having the strength to control the process and being vulnerable to feelings of suspicion and distrust of your spouse that can be exacerbated by the attorneys. Given the OTHER pitfalls of collaborative law divorce discussed above, one could argue that the collaborative process only detracts from something that you have the ability to do with your spouse alone, with a mediator, an arbitrator, or any attorney. So, if you think that the collaborative law “process” will somehow enhance your ability to keep things civil, think carefully about the pitfalls too before entering the process. Since the process is so intimately linked with the scruples of the collaborative law attorneys, you’ll have to watch carefully corruptions of the process so you can get out and reset before it is too late.
Collaborative attorneys always offer “coaches” to in order to help you communicate with your partner. If that type of psychological coach can actually achieve the desired result, then collaborative law could actually be a big benefit, since in the absence of any rational discussion with your spouse, you really just have a fight that will be duked out by the lawyers. On the other hand, if your relationship with your spouse is flawed in the way you communicate (very common), then no coach will probably be able to mend that for the purposes of the contentious divorce. It is kind of like asking a counselor to do in a few four-way meetings what you may have already tried and failed to do in months or years of marriage counseling. Each case is different, but these are things to think about.
Dressing up a court case in collaborative law clothing: Related to “wolf in sheep’s clothing” pitfall above. Basically, if a court case is looming as a threat to either party or tends to give one party an advantage in the outcome, then entering a collaborative law arena is potentially a waste of time unless you agree a priori with your collaborative law attorneys to not use that court case as an argument for settling.
The “silly putty” negotiation:
This term was used by an outside lawyer I consulted during the collaborative process when I complained to him that my wife’s attorney had stated that “nothing is settled until everything is settled.” This is a sleazy lawyer tactic that is used in both regular and collaborative cases for sure, but you should be wary of this language because it turns your case into a free-for-all, following an illogical and convoluted path to a difficult settlement. In my case, we had agreed on the division of community property before we even saw a lawyer and yet that could not be marked of or drafted as “settled” because my wife’s attorney wanted to hold it back as a negotiating point until the very end.
This could be a litmus test for your collaborative attorney in that, if you have settled some issues, ask them to draft those now rather than holding them back for negotiating chips. If it is a true collaboration, then drafting settled terms as they get settled is certainly reasonable.
The silly putty negotiation begins with the statement above, that nothing is settled until it all magically falls into place at some undetermined point down the road (after a ton of lawyer fees). It then may shift to something quite the opposite: “nothing is allowed to be changed!”. When we finally agreed on a gross alimony amount, after 8 months of haggling and arguing, my wife’s attorney stuck in her attorney fees with no discussion (specifically: wife’s attorney would not discuss matter and my attorney had no comment). In fact no discussion was “allowed” on the matter, even though the whole collaborative process demands that every issue be discussed. The opposing attorney reported fees that were 50% higher than I was aware of through my wife’s financial disclosures to me (without providing any invoices or statements) and conversations with my wife. Protesting the attorney on the fees resulted in an email from the attorney stating that a “clerical mistake” had been made by her office, and the fees being reduced to a figure almost matching my estimate for them. No statements were provided, and I later learned that I paid not only attorney fees, but court costs in the settlement, which I would have objected to, feeling that such filing fees should be split by the spouses.
I found that there was a mistake in my wife’s disclosure that caused a small discrepancy on the division of community property and reported this to the group. The response by my wife’s attorney was that I only “evidentally thought” there was a mistake and that my wife’s attorney refused to even read the document to confirm. The concept of something, even an accounting item, being corrected became an outrageous act of trickery and negotiation on my part, despite such mistakes requiring correction by the Guidelines of CL. There were other errors I found as well, but I was warned by my own softy attorney that bringing up an accounting mistake for correction would throw the whole deal up in the air and I’d risk being in court next! This once again went against the Guidelines. The collaborative guidelines given to us stated that there should be no intentional misleading of the other party on financial issues and that mistakes should be corrected without contention (PG 6.01).
If you are dealing with an ethical collaborative lawyer, then issues should be able to be resolved one at a time and drafted into a settlement or spreadsheet so that they are no longer negotiating points. This is the only logical way to solve a series of issues that, when resolved, will lead to a settlement. Resistance to correct honest mistakes made is also a sign of an unethical lawyer since any accounting mistakes or discovery of oversights should be allowed throughout the process. In the collaborative process, you have the right to quit and fire both lawyers. If signs of the “silly putty” negotiation appear early on in the settlement meetings, fire them and run the other direction.
Confidentiality: Have it or not?
It is very unclear when reading about CL whether the clients give up lawyer-client confidentiality or not. There seems to be published writings saying both, and the collaborative contract itself only has nebulous language about "honest and open" disclosure of information pertinent to resolving the case. Does this mean all information or only that material to a settlement (mainly financial information)? The Author realized that private conversations were being relayed to the other side in his case, and started marking all emails as CONFIDENTIAL. But it is interesting to note how many opinions seem to co-exist about it. It is the opinion of this site (see Links page too) that collaborative attorneys must follow the basic rules of conduct and this was reinforced by an ABA opinion issued in Aug 2007. As such, the lawyer must obtain permission before sharing information with the other side. If the client is witholding relevant material information required for an honest settlement (e.g. hiding assets), the collaborative attorney may withdraw.
If you're not sure what your rights are, ask your collaborative attorney (or all potential ones) to explain it and then be sure it is in writing and understood by ALL four parties before proceeding at all! If that still does not work, bail out as soon as possible to cut losses, anc complain to the State Bar about that attorney.
It seems that enough questions about CL Divorce have surfaced that perhaps the people inventing the term "collaborative" have worn it out. As such, you'll find lawyers discussing yet another new form of divorce called Cooperative Divorce (search for this phrase). They appear very close in meaning, but if the promise of collaborative is failing in many cases, a new name is necessary. The bottom line in the Author's opinion is that all adjectives that sound nice will eventually be worn out and meaningless in the world of divorce unless a tighter form of regulation is put in place to protect against the problems and pitfalls of CL described above. Anyone can produce a "new" form of seemingly calm and peaceful divorce. However, unless it is actually implemented well and strictly conforms to the adjectives used to describe it, abuses will develop along with corresponding stigma... until someone invents another way to describe the ideal of a peaceful divorce!
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