Vol. 82, No. 1, January
The collaborative divorce model
focuses on problem solving and conflict management, with lawyers often
working in interdisciplinary teams to help clients reach negotiated
settlements. This approach can make a family law practice much more
satisfying compared to the adversarial, litigation model.
by Diane S.
Did you have a burning desire to attend law school? Did you always
want to be a lawyer? Did you always want to defend the innocent or
prosecute the guilty?
Research shows that most law school applicants say they want to
be a lawyer to help others. I am sure I said that too. But the reality
was that, like so many lawyers, I did not find much satisfaction in
actual practice. Worse, after becoming a family lawyer, I was frustrated
with the many ways the advocacy system in family law not only failed to
help people but instead hurt them and their children. Now, in hindsight,
I know why I went to law school. I have finally figured out how to help
I always did try to help my clients. I knew the law and had a
flair for cross examination. I “won” many cases, but in
winning, I felt deeply unsatisfied. Clients who were
“winners” were nonetheless rightfully upset with the delays
and the high costs of trial and the never-ending court appearances even
after the trial. They did not understand how a trial would affect them
and their children at an emotional level. They did not recover from the
grief, guilt, or anger that brought them to court, and in some cases,
Courts and trials are mostly about finding facts and applying
law. Emotions, when considered, tend to be considered in the negative.
The judges in family court have always recognized that divorcing parties
will do better moving past their emotions if they settle their cases.
Those judges understand the limitations of the trial court process.
Settlement was often an afterthought and last minute. The
figurative expression “on the courthouse steps” sunk to a
new low reality in Milwaukee County when large recycling trash bins were
installed in the courthouse hallways, and last-minute settlements
literally were hashed out over the trash bins. Clients expecting trial
were not ready for these last-minute negotiations. Poorly-thought-out
settlement agreements only lead to future conflict.
What has changed? Collaborative practice came to Wisconsin in
Collaborative law is the 1991 invention of Stu Webb, a Minnesota
lawyer who decided one day after a particularly difficult case that he
would not go to court any more. The key component of collaborative law
is that lawyers are hired for settlement. In order to focus on
settlement, both clients hire joint experts and agree in writing that
their lawyers will not represent them in disputed legal proceedings. The
clients commit to a free and voluntary exchange of information without
formal discovery and to transparency as to all material facts. In most
cases, lawyers work in interdisciplinary teams with neutral mental
health professionals and financial advisors to help the divorcing
clients stay focused on their shared interests.
In ideal collaborative case outcomes, the former spouses are able
to remain good friends. Even in less than ideal cases, the former
spouses are able to work together cooperatively after the divorce,
avoiding the conflict that is so damaging to children.
Collaborative practice is not for every client, but neither are
trials. Clients must be well informed before signing a collaborative
participation agreement, but they should also be well informed as to the
risks and costs of litigation. Can a client be adequately informed of
the emotional costs of litigation or the potential damage to their
In talking with clients about divorce process options, I know
that clients appreciate choices. I still litigate when I must, but my
clients in those cases prefer appropriate, thoughtful, and early
settlements. Learning the collaborative process has taught me more about
settling cases than I learned in the first 25 years of my career.
Collaborative law is bringing about a profound transformation not only
in family law but also in business, probate, tort, and employment law.
More lawyers mediate and understand interest-based negotiation. More
courts order pretrial settlement conferences or alternate dispute
processes. The focus is on problem solving and conflict management.
These changes, small to some, but huge to others, have raised my
level of satisfaction in my career. I wish you the same.