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  • Inside Track
    August 05, 2015

    On Family Law: More Perspectives on Collaborative Divorce Numbers

    Brian H. Jensen & Diane S. Diel

    Aug. 5, 2015 – Brian Jensen of the Collaborative Family Law Council of Wisconsin and Diane Diel of Diane S. Diel S.C. respond to Gregg Herman’s July 15, 2015, InsideTrack opinion article, On Family Law: Collaborative Divorce Numbers Down, Why?”

    The Divorce Numbers Game

    In a recent InsideTrack opinion piece, Attorney Gregg Herman discussed his perceptions about a presumed decline in the number of collaborative divorces in Wisconsin. In the spirit of disclosure, I serve as the executive director of the Collaborative Family Law Council of Wisconsin (CFLCW); the group Attorney Herman helped create a number of years ago.

    Brian H. Jensen has served as the Executive Director of the Collaborative Family Law Council of Wisconsin Inc. (CFLCW) since January 2011. CFLCW is an association of attorneys, mental health practitioners, financial professionals, and affiliated service providers that support collaborative practice, an alternative dispute resolution process for divorce and other family-related issues.

    I have great respect for Gregg’s reputation and skills, and our interactions in the past have been lively and enjoyable. Unfortunately, I don’t have the historical perspective he possesses because until 2010, when I first met with the Council, I had never heard of collaborative divorce. More about awareness a bit later.

    Having spent my pre-CFLCW career in consulting and data analytics, I was intrigued by Gregg’s analysis – beginning with my belief about data analysis that the numbers don’t lie. The problem with analytics is that the data source is key, and often conclusions, or arguments, are offered that mask or malign the underlying data source.

    Gregg’s analysis fails to qualify the data source and, accordingly, his assessment suffers. The problem is not that it was an intentional misstep; the problem is that the assumptions, the data, and therefore the conclusions are suspect and incomplete.

    Data Source is Flawed and Incomplete

    The fact is, we really don’t know for certain how many collaborative divorce cases occur each year. The system used by the court invokes a filing code for divorce – not collaborative divorce, or cooperative divorce, or litigated divorce – just divorce. So unless someone takes the time to review each individual filing one by one, it is impossible to know for certain what “type” of divorce has been pursued.

    Gregg presumably followed that procedure. Unfortunately he selected only one county – Waukesha – one in which I suspect most family attorneys know has judges who refuse to accept collaborative filings for any number of reasons. Some believe it might be for process control (read as “performance metrics”), others speculate it might be because of an inherent distrust of any alternative dispute resolution process, or because of other triggers. For this discussion it matters because the data source is flawed and incomplete.

    The total divorce numbers Gregg cited are very close to those reported by the State Vital Records Office in the annual Wisconsin Marriage and Divorces reports for 2013 and 2014. What he did not cite was that Waukesha County divorces represent 7.1 percent of all divorces in the state (both years) and from 2013 to 2014 the total number of divorces statewide declined 4.4 percent.

    Does this mean Gregg’s analysis is inaccurate? No, just incomplete, with a data source that is suspect and deviates from the potential norm due to other factors (i.e., judicial nonacceptance of collaborative filings), and a sample size (a percentage of 7 percent) that any data analyst would tell you is so small as to be what we generically call “trend useless” – nice general information having no other value.

    The day this response was written – July 17 – I called three Waukesha CFLCW members and asked a simple question, “How many collaborative cases did you have in 2014?” The total from these three attorneys alone was 26 – more than three times the number Gregg cites for the year. The value of my “survey” is also incomplete, subject to the same external forces, and in a year in which divorces are in decline. But the collaborative process was followed and agreed upon/signed by clients and attorneys in every one of these 26 cases. Does that make it “not real?” Of course not.

    The Need for Reporting and Uniformity

    What should be done about this? For starters, the court system should allow for the coding of family law cases to reflect the process being followed, collaborative or otherwise. Let’s use a simple coding process, if only to avoid questionable analyses in the future.

    Second, the court is supposed to serve the public, and earlier this year the supreme court enacted the concept of limited-scope representation, an important recognition that alternative ways to serve the public are necessary. Now judges should be required to follow the processes anticipated by that approach and not use personal attitudes or performance metrics to muddy the water, and the data. Collaborative is an accepted process and no one should prevent a couple from access to the process as it is intended – with the client in charge.

    Third, adopting the Uniform Collaborative Law Act – as has been done in a number of other states – will accomplish several goals including eliminating organizational interference in the process, publicizing its availability to Wisconsin families, and making sure adequate controls are in place to make it work for everyone uniformly and not on the basis of the county of residence or legal filing.

    What about the other concerns Gregg raises in his commentary? Some of them are spot on, especially “the collaborative process has potential merit.” It was a good idea years ago when it emerged from Minnesota attorney Stu Webb. It was a good idea when I first heard of it in 2010. And it’s a good idea for virtually every member of the public who attends CFLCW’s free seminars on all divorce options. These attendees routinely offer comments like “I have been looking for this approach,” “Why isn’t this more well-known?” and “People need to know this is available!”

    It is very difficult to reconfigure most processes, and the legal and court system is no different. It takes time for practitioners to accept the variations, time for the public to become aware and understand the new approaches, and time for the analysis of its value to emerge.

    However, collaborative divorce is not what Gregg calls “a social event for lawyers.” It is a bit of a stretch to suggest that collaborative practice has failed to impact divorce. To do so is disingenuous to the practitioners that help train their colleagues in the process, deliver pro bono services in the name of the organization, and genuinely care about things like the impact divorce has on children. The data does not lie – with about 16,000 divorces a year in Wisconsin, that same State Vital Records Office report indicates that in 2014, 14,676 children under age 18 were impacted by divorce. That number or one close to it is likely to be repeated again and again, year after year. Any process that mitigates the potential negative impact of divorce on children should be promoted and encouraged regardless of who created the process.

    Hopefully, this discussion will generate more dialogue that results in positive steps to enhance alternative dispute resolution approaches across the board. Not much will change if “research” is used to put forth claims of process failure or ego exercises or social events. Practitioners should work hard to promote and deliver their brand of professional service and not spend time detracting from a process they do not support. With a uniform system and reporting, we can then let the data chips fall where they may.

    Collaborative Divorce Alive and Well

    Contrary to Gregg Herman’s opinion, collaborative practice is alive and doing well. Gregg has made assumptions about potential clients of collaborative practice and the lawyers who practice collaboratively based on data that is just wrong. His article focused on one county – a county in which the judges do not sign the collaborative participation agreement. It is impossible to know or count the numbers of cases processed in the collaborative model in Waukesha County. The “research” done here calls to mind George Canning, a British Prime Minister in the 1800s who is credited with saying “I can prove anything by statistics except the truth.”

    Diane DielDiane Diel, of Diane S. Diel S.C., practices family law in Milwaukee. She is a former chair and director of the Collaborative Family Law Council of Wisconsin and a former president and director of the International Academy of Collaborative Professionals. Diane is a past president of the State Bar of Wisconsin.

    Gregg dropped his membership in the Collaborative Family Law Council of Wisconsin in part, he claims, because of the “caliber” of potential client calls he received, complaining that the callers either sought to perpetuate power and control over their partner or were trying for an inexpensive way to divorce. Cases involving domestic violence require special attention and a focus on safety in any approach to divorce. While I cannot comment on his intake calls in terms of client’s expected billing approaches, I do think that clients have become increasingly concerned about the cost of divorce and getting value for the money spent on fees.

    That is not an indictment of the potential “collaborative” process client; it is the real world. Gone are the days when a lawyer can assume that a client will not seek to negotiate fees or billing practices. Callers to my office often express concerns about the fees they will be charged, and most often state that they wish to protect their children from bitter and recurring court fights; they wish to be educated about the law; and they wish to make their own informed decisions. They wish to preserve their privacy and they don’t want to lose control of their own divorce process to adversarial lawyers. These are the collaborative clients.

    The real numbers of interest in Wisconsin courts are the numbers of people navigating divorce without lawyers at all. The numbers of pro se cases have risen drastically in recent years. Why don’t people hire lawyers? Cost is a factor, and so is Gregg’s point about lawyers being suspicious of change. The Collaborative Family Law Council of Wisconsin is not what Gregg derisively refers to as a perceived “ego exercise,” but rather it is a symbol of change that is needed in “normal divorce practice.” The public perception is too often that lawyers escalate conflict, rather than supporting rational problem-solving. The interdisciplinary collaborative process supports informed decision-making.

    Nothing “went wrong” with collaborative practice. Those who can are continuing to practice and develop this client-centered, interest-based negotiation settlement process. Those who can’t have left the practice and the organization. Change does take time and it takes work. The marketplace demands change, and collaborative practice is a response to the need for change. John Kenneth Galbraith said it best: “Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.” It is time for lawyers to stop looking at invalid data and start working on staying relevant.

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