Vol. 75, No. 5, May 2002

Collaborative Divorce is a Proven, Ethical Solution

• Collaborative Divorce and Malpractice: A Debate

by the Collaborative Family Law Council of Wisconsin

It is critical to recognize the inherent paradox in "family law." The unique aspect of divorce cases is that once loving family relationships end in the litigation system, with toxic lawsuits and devastated children.

The public, attorneys, and other professionals working with families in divorce have become increasingly dissatisfied with the limited alternatives for resolving the custody, placement, and financial issues inevitable in divorce. Many studies and nationally distributed books delineate in painful detail the emotional toll taken on everyone who goes through the divorce process, particularly the children. Research has shown that it is not the divorce itself that is the most destructive element for families, but rather the effects of conflict that often occur as a result of the traditional adversarial divorce process.

Collaborative law addresses the proven need for peaceful resolution of custody, placement, and financial issues. Without collaborative divorce, those issues can be financially and emotionally debilitating to all family members.

The damaging effects of the legal process in divorce have led parties and professionals to search for alternatives, such as mediation. The steep increase in the numbers of individuals choosing to file and process their cases without attorneys, despite many having the financial means to secure representation, is a reflection of the public's dissatisfaction with and distrust for attorneys. Attorneys often are viewed as promulgators of conflict rather than as problem solvers. Until the advent of collaborative law, there was simply no way to provide effective legal representation to the parties in conjunction with ensuring a nonadversarial approach to divorce.

Collaborative law addresses the public and professional concerns by compelling an out-of-court, problem-solving approach. In addition, the collaborative divorce model incorporates experts from other disciplines, including mental health professionals and financial specialists, to assist in finding solutions that meet the long-term best interests of all family members. The fundamental element of the collaborative process is contained in the stipulation and order signed by both attorneys and both parties in which they agree that the case will be resolved without litigation; if either party chooses to resort to court, the collaborative counsel are disqualified from further representation and must transition the case to new attorneys.

Certainly some lawyers will say that they can practice in a cooperative way to achieve settlement without a mandate to withdraw if settlement is not achieved. This ignores the unfortunate nature of many divorce negotiations that occur under threat of litigation, are premised upon posturing and biased speculation, and too often conclude within hours of trial when one or both of the parties are too financially and emotionally exhausted to continue the battle.

Divorce negotiations often are conducted by attorneys locked in the traditional litigation model who are unable to relinquish their litigator's bag of tricks acquired in years of practicing in the adversary system. The analogous process is more like the high/low bickering involved in buying a car than an honest cooperative approach to help clients reach agreements that meet the needs of both parents and their children. This win-lose approach often comes at the expense of open communication and creative problem solving and results in parties who don't understand the agreements reached and who often feel angry at one another, their attorneys, and the legal system. This settlement approach, with the litigation bludgeon over each party's head, also has the effect of increasing the likelihood of harmful post-judgment litigation.

The technical problems and fears raised in the main article have not been borne out in other states where collaborative practices have been thriving for many years. Collaborative contracts, like other legal forms, are evolving documents. Even now, the forms referenced in the accompanying article are being revised by the Collaborative Family Law Council of Wisconsin. Review of forms and techniques is an ongoing process in collaborative law. Constructive criticism can always be addressed in careful drafting and continuing evaluation. Despite the high incidence of ethical complaints and malpractice claims against family law attorneys, there has not been a single reported instance of such a claim in a collaborative case.

Collaborative law has experienced rapid and widespread growth throughout the United States and Canada. The American Bar Association recently published a book on collaborative law authored by Pauline Tesler, the acknowledged national expert, that is being disseminated nationwide. Texas has passed a collaborative family law statute, which has served as a springboard for the rapid acceptance and use of collaborative law in that state. In other states, the growth of collaborative law is being fostered by local and statewide organizations. In Wisconsin, collaborative law is being advanced by the Collaborative Family Law Council, which draws its membership from a variety of divorce professionals including attorneys, mental health professionals, financial specialists, and vocational advisors. The council maintains a Web site, www.collabdivorce.com. The Web site contains information on training, answers to frequently asked questions, how to locate a collaborative professional, and more.

Lawyers need to hear and address the public's growing concerns regarding our profession. Particularly in family law, parties need an option in which lawyers serve as expert advisers and legal counselors and not as gladiators. Collaborative law evolved as a response to the public and professional outcry to find a less destructive method of resolving divorce issues. We have a unique opportunity in Wisconsin to follow our progressive tradition and embrace this creative, humane, and respectful process. We should not allow surmountable technical challenges to quash the hope of countless parents and lawyers for a peaceful resolution process. Rather than engaging in a counterattack on the critics of collaborative law, we suggest a symposium be convened for lawyers and other divorce professionals to address substantive concerns in a productive process. True collaboration can be used to enhance the solutions to any problems set forth in the accompanying article. It is time to proactively find solutions to problems in the divorce arena rather than to exacerbate conflicts at a personal or professional level.

Wisconsin Lawyer