Rob Harvie's Open Salon Blog

From Georgialee Lang: Is Collaborative Law a "Wolf in Sheep's Clothing"

Wed, 15 Aug 2012 19:08:00 -0400

Hello Little Red Riding Hood.. Welcome to Court!

Well.

In a recent article - August 3, 2012 in Canada.com - Georgialee Lang suggests that clients be wary of Collaborative Divorce, suggesting that it's a "wolf in sheep's clothing."

Georgialee appears to be a family lawyer of some significant experience and skill practicing in British Columbia, and, as many lawyers who criticize the formal Collaborative Process, her article critiquing the process ends with the now common refrain, "I have always practiced family law collaboratively, I just didn’t adopt the tag."

The theme of her article, essentially, is that:

a) Collaborative Divorce misrepresents itself:

"Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts.

It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts”, one can easily imagine spiralling costs. In one case involving a short marriage with no children, the collaborative process cost a couple $55,000.

This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst."

b) Collaborative Divorce is just another way of strong-arming:

"But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. In one respect they are like “wolves in sheep’s clothing” as they implement strategies usually reserved for “bulldog” lawyers, including the dreaded “Nothing is settled until everything is settled” and “We refuse to counter”, driving one party to negotiate against him or herself."

So.

What do we, as Collaborative Lawyers, do in response to this?

Well.

First thing we ought not do is ignore possibly valid criticism.

We should not be marketing or describing collaborative divorce as a "money-saving" process. It could be. But then so could arbitration, or mediation, or flipping a coin to determine custody of a child. The value of any choice should not be how cheap it is, but, rather, how effective it is.

And that leads to a second potentially valid critique.

If we are not careful, a collaborative divorce can become overly prolonged, inefficient, and, in the bargain, excessively expensive relative to the results obtained.

The clients and the lawyers must be diligent in assuring that collaborative meetings are productive, that they are finding results for the parties, and are not misusing the process to either prolong, unnecessarily, discussion without purpose or creating added expense without results.

Particularly in a case where one party is paying all of the costs of the process, there can be abuse. The clients and the lawyers should be alive to that concern, and be prepared to address it, if need be, and, in an appropriate case, to end the process where progress is not occurring.

Beyond that, I take some offense to her suggestion that "make no mistake... collaborative lawyers are still out to get the best deal they can for their clients." If the suggestion is that collaborative divorce is just another way of getting "the most dollars possible" or paying "the least dollars possible", in my opinion, that's clearly wrong. And it either betrays an ignorance of the process on Ms. Lang's part (my guess), or perhaps an effort to "protect turf" by a litigator.

I have to say, I have encountered collaborative files that have become positional. Files where the collaborative lawyer, while trained, didn't fully make the leap that positional bargaining has no place in a collaborative file. Who didn't understand that the traditional approach of seeking to threaten, cajole, or manipulate to obtain the greatest amount of financial benefit (or time with children) is overly narrow in addressing a client's interests, and, in general, has a tendancy to create an atmosphere in which clients are more likely to make poor decisions about their settlement options.

But those experiences have been very, very limited.

The vast majority of collaborative files, in my experience, have lawyers who have comfortably removed their own interest in the outcome. In other words, they are not "trying to get everything they can possibly get" for their clients. They are invested in empowering their clients to fully and completely understand their options, their legal status in the matter - and the "big picture" which will, most certainly, include issues relating to entitlement to property and support issues and how that will impact their future. However, the collaborative process allows parties to expand their view of what their full interests are - including the importance of considering the impact of their choices on their children and on themselves - in which money received or paid is perhaps only one of several factors to consider.

So.

A "wolf in sheep's clothing"?

Hardly.

But, as a litigator of some 26 years experience, I can guarantee you one thing: the court system is DEFINITELY no place for little red riding hood.

Finding a "Real" Collaborative Professional

Fri, 10 Aug 2012 14:08:00 -0400

For clients, and collaborative professionals, this morning I received a note from the IACP advising that they have received information that IACP members are being solicited to advertise in an on-line directory with Mediate.com and CollabLaw.com. A copy of the notice is as follows:

Dear Robert,

We have just learned that many IACP members have been or may yet be contacted by Mediate.com/CollabLaw.com with a commercial solicitation for placement in an on-line directory ostensibly dedicated to Collaborative Practice. Please be assured that IACP did not release your name or contact information and had no involvement with or consultation into the content of this offer or this directory. IACP will never release your name or contact information for any purpose to any vendors. Unsolicited commercial email can be reported as "spam" to the marketing company through which the e-mail was distributed.

We are concerned regarding this directory as it apparently lists anyone who has paid the fee to be included, whether that professional actually offers Collaborative Practice services or not. There are many services divorcing couples could consider. And, we believe the professional community who serves these couples owes them clear information. Advertising oneself as a Collaborative practitioner when, in fact, one does not offer Collaborative Practice services is misleading to the public and does a disservice to consumers who are sorting through complex issues during troubled times.

We urge IACP members to be very clear in all the ways and through all the means by which you educate the public about Collaborative Practice.

With best regards,

Lynda Robbins, President

Talia Katz, Executive Director

The concern raised is that there is no need to verify training in Collaborative Law to belong to the service, such that those coming to the site should be aware that these sites do not necessarily guarantee that the person being contacted is, in fact, fully trained in the process.

As such, while lawyers, financial professionals, or mental health professionals are free to use the service, if desired, those who are seeking to find someone to assist them in Collaborative Law may be advised to either search for practitioners under the IACP website, found here:

http://www.collaborativepractice.com/_loc.asp

Or, alternatively, search their local area for their State or Provincial Organizations who may have a similar list of TRAINED collaborative professionals, which, for Alberta can be found here:

http://www.collaborativepractice.ca/find-a-professional/

Collaborative work is not easy, and it's not simply a matter of trying to be amicable. Many practitioners have taken many hours of training, beyond simple interest-based negotiation - and those seeking out Collaborative Professionals are well advised to take care in seeking out the most qualified professionals possible.

Stu Web - Collaborative Visionary is Passing on the Torch

Fri, 3 Aug 2012 13:08:00 -0400

Well.

Today I received an email from Ron Ousky, via the amazing Collaborative Law Listserv, advising that tonight, in Minneapolis, Minnesota, there will be a retirement dinner in honor of the great Collaborative Law visionary, Stu Webb.

After giving so much of himself to give the world a new and better way to resolve legal problems, Stu is apparently passing the torch to the rest of us to continue the conversation, to the great benefit of so many people, particularly those struggling to resolve differences in Divorce and Family Law matters.

For an excellent description of where this process came from, best to hear it from the "horse's mouth" so to speak:

Tom Cruise and Katie Holmes - the Upside of Collaboration

Tue, 10 Jul 2012 10:07:00 -0400

Tom gets down off the couch,

and resolves his divorce in an amicable, sensible, fashion.

Go figure.

Well.

The tabloid dream.

This was the Tom Cruise/Katie Holmes divorce.

It had all the makings of a never-ending make-work project for the gossip magazines, didn't it?

The highest-paid movie star in the world, Tom Cruise, vs. Hollywood beauty, Katie Holmes.

The Catholic v. the Scientologist.

The demure young woman v. the couch-jumping crazed superstar.

National Enquirer, the Star, and CNN.. all the gossip rags were salivating over what was sure to be a nasty public bloodletting where all of the embarassing little secrets of what brought about the demise of the TomKat marriage would be finally exposed for everyone to see.

Except that's not what happened.

Yesterday, we hear that only 11 days after Katie Holmes filed for divorce, it was settled.

No lurid public hearings.

No public exchange of allegations and justifications.

Just an amicable, private resolution of their marriage dissolution.

How could this happen? How could the public be denied the ability to cheer their good guy (or gal) on through months and months of public battles?

Well, apparently THIS is how:

"We want to keep matters affecting our family private and express our respect for each other’s commitment to each of our respective beliefs and support each other’s roles as parents," they said.

Really?

You wanted to keep your family matters private and express respect for each other's roles as parents?

You wanted your child to not experience, first hand, the trauma of a nasty and brutish divorce?

Go figure.

Now.

While the TomKat divorce was not, it appears, a formal collaborative divorce resolution, it does illustrate the great benefit of entering into a committed effort to find a solution, without recourse to the antiquated and uncertain litigation process.

Two adults, it appears, found a way to resolve their differences in a private process to their mutual benefit and to the great benefit of their child.

Well done.

Now.

Rest assured.

If someone had a good look at the details of the divorce, I can guarantee you that there are scores of hot-shot divorce litigators who would shudder at what was "left on the table".

Tom - you gave up parenting too quickly, you could have obtained a shared custody order - your settlement denied the validity of your faith as against the Catholic faith.. you should have fought to have your beliefs respected.

Katie - you could have leveraged the validity of the prenuptial agreement to obtain a more significant settlement. And how could you possibly know that Tom had disclosed all of his income and assets without weeks and weeks of depositions and forensic financial analysis?

Sure.

And it might even be true.

Maybe Tom could have succeeded in obtaining an order preventing his daughter from attending a Catholic school.

Maybe Katie could have obtained more money.

But at what cost?

At what risk?

Are either of them going to be going to a soup kitchen anytime soon?

Would their daughter have been a happier child if her parents had argued over custody and religious education issues for months and months - only entrenching anger and bitterness between them?

Hardly.

This is the best example of what is possible if people put anger, pain, and greed aside, and put their child first, and put a value on privacy and speedy resolution.

This is the best example of why couples faced with divorce, like Tom and Katie, MIGHT want to look into the Collaborative Divorce process.

The Folly of Hiring Lawyers to be Mechanics

Tue, 1 May 2012 09:05:00 -0400

As a lawyer, it's my opinion that your car has a torqued-out bindle rotor..

I had a Collaborative file a while back, which, unfortunately, didn't work.

We moved through he parenting and property division like a knife through butter.

Child Support - no problems.

And then we came up against the alimony wall.

We did all the things we're trained to do.. we tried to focus the parties on the common elements of the discussion - avoiding the risk of litigation, understanding the need for both homes to have standards of living which would allow the children a similar experience with both parents.

We reviewed budgets, we discussed future needs.

We discussed how the parties felt about the issue of support and what roadblocks might exist which made it difficult for them to find compromise.

We reviewed BATNA and WATNA.

And, oddly enough, counsel was very close to agreement on those parameters - and the "most likely result" of a litigated outcome.

Husband was agreeable to compromise his position to accommodate the "most likely" outcome.

And, still, we failed to find resolution for our clients.

I reached out to other expert Collaborative counsel for advice - to no avail.

And, as a result, the Husband requested that the Collaborative Process be terminated - and it was - about a year ago.

So what happened? Why did we fail to find a solution to our clients' needs?

Why did we spend thousands of dollars, and still find ourselves without resolution?

At the end of the day, it appeared that there was an emotional aspect to the discussion that we couldn't overcome. The Wife perceived the Husband as abandoning his family for another woman, and Wife perceived that even with a 40% allocation of the parties' income, plus child support, the Husband's lifestyle would still exceed her own, having regard to the income of the Husband's probable future partner.

So. Why am I sharing this "failure" on my part?

Well, if there was a failure on the part of counsel, it was, I think, in not fully understanding the depths of the Wife's emotional strain, and not pressing the parties to counsellors to address that aspect.

To be sure... the process may well have still fallen apart. But I think we made a mistake that I see fellow counsel grapple with quite often - which is allowing their clients to "save money" by not getting counselling where it is necessary to facilitate the process.

I've had this discussion with many other counsel to whom I have recommend the "team approach" of Collaborative Divorce.

The response I am often met with is, "It's difficult enough for my clients to pay me, let alone hiring two more professionals."

My response. The job of a lawyer is like being hired to drive your client from Lethbridge to Medicine Hat, or Calgary, or Edmonton, or Grande Prairie.

It takes a while, the lawyer is hired to help their client navigate the journey through the laws and issues their clients encounter along the way.

We, as lawyers, take on that task, confident of our ability to drive the vehicle, to navigate the course, and to avoid collisions along the way. This is what we do as lawyers - and we charge a significant fee for that effort.

Now.

Imagine that our vehicle has some serious mechanical problems.

We are not trained as a mechanic - we are trained as a driver.

So then...

You could hire a mechanic along the way to examine and fix underlying difficulties with the vehicle, at an hourly rate of about half of what you would charge.

Or. You could just keep driving, but knowing there was a high probability that the vehicle problems were going to get worse. As the vehicle begins to break down - you could "band-aid" solutions, for which you have no training, charging your clients double what the mechanics charge for service which is, well, grossly inadequate to the task.

Which choice appears to be more economical, in the long run?

Speaking from experience in the file referred to above, we tried to use our legal skills to band-aid an emotional problem, and the, ultimately, the collaborative vehicle just died.

This could be you.

Don't be either blinded by the false economy of not hiring proper assistance, or your own false pride in your own ability to "fix a broken car."

Take the benefit of my mistake - and don't make it yours.