July 15, 2015 – Previously, I have speculated on the differential between the attention that collaborative law attracts and the number of actual collaborative cases filed.  In those instances, I’ve presented statistics on the number of filings and questioned whether, given that the process is new, the number would increase to a significant number of divorce cases. (See Gregg Herman, “Collaborative Cases Gain Momentum in State,” Wisconsin Law Journal, Nov. 24, 2008, and “Why Are There Fewer Collaborative Law Filings?” Wisconsin Law Journal, June 8, 2011.)

Has time changed these numbers? To answer that question, my office studied divorce filings for the last two years in Waukesha County. As before, we selected Waukesha County because there are enough divorce filings to make a study meaningful, without so many (for example, Milwaukee County) as to make the study too difficult to perform.

The result? Collaborative law, despite advertising, numerous seminars, social programs, and other promotions, remains a minuscule number of actual divorce cases. Moreover, the trend is fewer cases, not more. For a process whose value receives so much promotion, its minuscule usage raises some serious questions.

Our first study of 3,927 divorce cases revealed that 75 cases, or less than 2 percent were filed as collaborative cases. The second study of 2,579 cases showed that this percentage declined to 1.4 percent.

Our newest study examined 2,443 divorce cases filed in 2013 and 2014. Of these cases, 19, or 0.77 percent, were filed as collaborative cases. That is less than one percent for those of you counting from home. Our raw data is posted on my office website at http://www.loebherman.com/13-14collab.html.

The collaborative process has potential merit. It promotes settlement negotiations without positional negotiating, which can alienate people who will usually have each other in their lives forever. While the components of transparent discovery and joint appraisals are not revolutionary in divorce cases, the use of divorce coaches and child specialists can be quite valuable in the right case, whether collaborative or not.

The lack of actual cases is a personal disappointment: I not only founded the Collaborative Family Law Council of Wisconsin, but served as its first chair for two years. Yet, two years ago I dropped my membership. The calls that I was receiving from potential clients seeking a collaborative divorce were not of the caliber I expected. Instead of people seeking a peaceful, dignified end to their marriage, invariably the calls were from people seeking primarily a cheap mechanism, sometimes to camouflage the real issues in the marriage. Some of these calls, for example, were from men subject to restraining orders for domestic abuse. From the conversation, it seems that collaborative divorce is attractive to avoid such incidents from playing a role in the case. This is not the purpose for which collaborative divorce was invented.

So what went wrong? Why is collaborative divorce more of a social event for lawyers and less a viable, growing movement to resolve cases in a peaceful format? There are several possibilities. Certainly, the perception of the organization as an ego exercise for a limited number of attorneys may play a role.  Second, lawyers are notorious for being suspicious of change and the concept of guaranteeing not to litigate represents a major change from normal divorce practice. Also, many lawyers find that the concept of giving up potential litigation – and even the threat of potential litigation – may not serve clients well in a field in which rationality is not always apparent or present at all.

One can only speculate as to the reason. The failure of collaborative divorce to significantly affect the practice of divorce law is, unfortunately, a fact. In my next article (scheduled for Sept. 16), I will take a look at some alternate approaches to divorce that have the same goal, but that have had more success.