Wisconsin Lawyer
Vol. 82, No. 1, January 2009

President's Message

Getting Satisfaction

by Diane S. Diel

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 people.

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, they worsened.

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 2001.

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 children?

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.  

Wisconsin Lawyer