Vol. 75, No. 5, May
2002
Collaborative Divorce is a Proven, Ethical Solution
Working together, family law practitioners can
surmount technical challenges and substantive concerns about the
collaborative process.
Authors Diane S. Diel, Steven A. Bach, Susan
A. Hansen, and Carlton D. Stansbury are members of the Collaborative
Family Law Council of Wisconsin Inc.
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.
Read the other viewpoints:
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