Collaborative law — solving disputes the friendly way
By Diane Curtis
The divorce agreement had just been okayed by the husband and wife. The soon-to-be
exes and their respective attorneys got up from their chairs to head for the
door. But first — hugs all around.
Mill Valley family lawyer Pauline Tesler is used to this upbeat goodbye scene
after what other attorneys more often experience as a debilitating, take-no-prisoners
process that ends in hostility and anger. But Tesler’s practice is limited
to collaborative law, and that, she says, makes all the difference.
Until she learned about and started practicing collaborative law, Tesler was
“pretty miserable” witnessing the impact of the divorce process
on her clients. “You prepare aggressively. You maintain maximum control
over all the information and shape a theory of the case in which your client
is all good and (the opposing) client is all bad. You know that family law judges
will never give 100 percent of what the client asks for, so you have to ask
for more.” And on and on with an adversarial process.
Even mediation falls short, many collaborative law advocates say, partly because
both sides are trying to convince one person — the mediator — to
favor them. Unlike collaborative law, says Tesler, a pioneer, author and trainer
in the field who received the first American Bar Association’s “Lawyer
as Problem Solver” award in 2002, the quality of mediation can vary widely
because it is not regulated and a lawyer may or may not be the mediator. Collaborative
law, on the other hand, gets “to the heart” of law. It’s “a
structured model in which people know the sole purpose is to get where all the
parties want to go,” she says.
Collaborative law has very much caught on in family law, and the stirrings
of interest in the practice have begun in civil law. Northern California civil
attorneys Peter Sandmann and Gary Weiner say that although they have not yet
used collaborative law with clients, they are trying to enlist other lawyers
so that business and other civil litigants will know they have the option of
a process that ends with opposing clients as possible future teammates rather
than barely tolerated, eternal enemies. Even some corporations are talking about
applying collaborative law to their disputes, Sandmann says.
“It takes two to tango,” says Sandmann, who is Tesler’s partner
in the Mill Valley practice and participated in some of her collaborative law
training sessions. He refers to the fact that it does no good for one client
to be interested in collaborative law and to retain a collaborative law attorney
unless the opposing client also has a collaborative law attorney. “A lot
of commercial lawyers in the area are well known for being kind of difficult
people and aggressive and strong advocates. That’s not necessarily a bad
thing, but it could be inconsistent with the collaborative law practice.”
Weiner, who is part of a San Rafael group called Resolution Remedies and who
is devoting his entire civil practice to mediation and arbitration, says it
will take a “critical mass” before collaborative law at the civil
level gets going.
The starting point in collaborative law is an agreement to work together and
do everything possible to “facilitate reasonable, efficient settlement
of all issues,” Tesler wrote in the January 2003 issue of Alternatives.
If settlement cannot be reached, the lawyers must disqualify themselves from
representing their clients in any litigation. The parties also agree to provide
early, voluntary disclosure “of all information that a reasonable decision
maker would need to make an informed decision about each issue in the dispute.”
Weiner notes that disqualification is a major issue of contention for many
civil lawyers in collaborative law. Because he prefers to talk about an approach
that may not exactly copy the collaborative approach, he calls the civil version
“cooperative law.” But the goals and most of the procedures would
be the same, he emphasizes. “People want to be helped differently, and
lawyers want to help differently.”
As an example of collaborative law, Tesler tells of a couple getting a divorce
who had already agreed to remain business partners but who both sought custody
of their young daughter. It was clear to the lawyers on both sides that the
parents had some issues to resolve regarding their own capabilities as parents.
So, before negotiations on other issues began, the parents were sent to licensed
mental health coaches to improve communication and work on a timeshare plan
that took the child’s needs into account.
“They agreed during the legal negotiations that any changes in the timesharing
would not affect child support,” says Tesler. “This is something
that often is the hidden engine driving court-based custody battles
. . . With this agreement, there was no financial consequence to changing the
timesharing in ways that honored the needs of the child.”
In a conventional divorce, she says, fallout from contesting a temporary custody
and support motion (“that could easily cost as much as the entire collaborative
case”) generally makes it impossible for the parents to have a friendly
co-parenting experience. And in that case, it is the child who loses.
In another case, a wife had mental health problems that could have been exacerbated
by an acrimonious divorce proceeding. Instead, the husband was patient and the
lawyers backed off while the wife could come to terms with some of the issues.
“Adversarial lawyers would have had a hard time not getting hooked by
(the wife’s) paranoia, and would very likely have engaged in costly, time-consuming
discovery to find non-existent hidden assets,” Tesler says. In representing
the husband, his lawyers “would have focused far more on the legal entitlements,
rather than sticking with the big picture, which is that a mentally ill person
rarely behaves more reasonably when met with opposition and resistance. This
would almost surely have become a high-conflict, high-cost divorce with conventional
lawyers.” In another case, the parties saw during negotiations that their
problems were not insurmountable, and they reconciled.
Clients aren’t the only beneficiaries of collaborative law. “I
became a lawyer because I thought it was a profession where I could help people
and do good,” says Ronald Supancic, a Woodland Hills lawyer who has been
practicing family law for more than 30 years. “I was taught competitive,
combative dispute resolution and the assumption that people are incompetent
to make their own decisions. We’re finding that people are competent to
make their own decisions.”
“I long ago decided that I wasn’t happy litigating cases,”
says Weiner, who was director of the Sonoma County Superior Court alternative
dispute resolution office until last June. “It seemed like a waste of
my abilities and a waste of my clients’ resources. Rather than solve problems,
it just seemed to create more problems.” Lawyers end up using their time
arguing whether a particular document should be disclosed rather than
getting to the heart of a matter and reaching a solution, he says. Collaborative
law, he adds, threatens people who may like the current system because it allows
them “to hold the secrets or have the keys to the kingdom. There are a
lot of people who need to feel important, feel like they know something that
nobody else does.”
But, he adds, “this is the kind of thing our clients have been asking
for. They say, ‘Why can’t we sit down and work through this in a
Sandmann thinks that once more lawyers learn that collaborative law is an option,
they’ll jump right in. “I think a lot of people have gone into law
because they think they can help people,” he says. “There is also
sort of a social conscience that is widespread among lawyers, and if they were
offered the opportunity, they would be amenable.” Sandmann is seeing evidence
of that interest as a listserv and conference calls about collaborative law
signs up more and more new members.
He and Tesler note that only about 5 percent of cases ever go to trial anyway,
so the effort and skills should focus on negotiations, not courtroom strategy.
“What happens is a huge amount of money gets spent with the discovery
procedures, procedural posturing and trying to get the advantage in some other
way,” Sandmann says. “Convincing the court of the rightness of your
position, painting your client in the best possible light, not acknowledging
any problems your client brings to the dispute. In a dispute when you’re
sitting across the table from somebody and you know damn well your client made
some mistakes, you might as well admit it.”
Besides the emotional benefits of collaborative law, the system saves clients
money. Tesler estimates that collaborative law divorce cases cost one-tenth
to one-fifth what litigation costs. “You’re not wasting money on
discovery motions or interrogatories. You don’t go into court to argue
what things are protected by privacy rights. You don’t do custody motions.
You don’t do continuances, pretrial conferences, mandatory settlement
conferences, trial briefs.”
Tesler calls collaborative law an “interdisciplinary” process in
which financial planners or therapists are hired not to help one or the other
side but to help both sides.
In an article called “Collaborative Lawyering: A Closer Look at an Emerging
Practice” in the Spring 2004 issue of the Pepperdine University Dispute
Resolution Law Journal, Boston attorney William H. Schwab cites the benefits
of collaborative law as being faster and cheaper, producing better quality settlements
and ending with less stress and emotional impact on clients, their children
and on lawyers.
He says ethical concerns raised by lawyers include the idea that collaborative
law will violate a lawyer’s duty of zealous advocacy, that practice groups
of collaborative lawyers may violate conflict of interest rules, that the full
and open disclosure rules of collaborative law violate client confidentiality
and that withdrawing from litigation violates the need not to impose “material
adverse effect on the interests of the client.” Supporters say that collaborative
law does not violate those legal tenets.
In a survey of lawyers and clients that represented more than 700 collaborative
law cases, most of the clients said they were drawn to collaborative law as
a way to do the best for their children. Settlement rates for the most recent
cases of 63 lawyers averaged 92 percent. On average, lawyers spent about 29
hours on their most recently concluded cases.
Woodland Hills’ Supancic calls collaborative law “the wave of the
future. I think we’re only 18 to 36 months to the tipping point.”