Every week or so, I read online with great interest how one of my divorce attorney colleagues has “taken the pledge” to litigate no more, and only accept cases that are going to be resolved through collaborative divorce, or mediation. These pledges are typically posted in listservs, or blog posts, which are devoted to collaborative divorce, and those of us who practice collaborative divorce.
Shortly after one of these well-meaning colleagues posts their pledge on a collaborative divorce listserv, or blog, they receive congratulatory replies, and testimonials by the respondents. These replies usually take the form of a reassuring testimonial by another divorce professional who has “taken the pledge” and forsworn the litigated divorce forever. The reassurances come in the form that these pledge takers share that while they all initially experience a drop in revenue from this paradigm shift, they eventually make up any lost ground, and lead happier, less stressful lives. They go home early; they do not lose sleep at night; they let go of support staff; they cut down on their overhead; they stop drinking; and, their former spouse returns, giving them a new lease on life (I made those last two up, but you have to admit, they do begin to sound a little bit like the punchline of the old joke “what happens when you play a country music song backwards”).
I suppose at this point, I should add my bona fides here: I have been a divorce attorney for over 27 years, and a Guardian ad litem, accepting the highest of high conflict cases in that time; I also became a mediator in the 1990s, and watched that part of my practice grow considerably; in the late 1990s, I was trained in collaborative divorce, advanced collaborative divorce, interdisciplinary collaborative divorce, and was one of the charter members of an organization known as the Center for Principled Family Advocacy in Cleveland, Ohio, (www.famad.com) whose mission is to train attorneys, mental health professionals and financial professionals, in alternative dispute resolution options for divorcing couples, and to educate and inform the public that there are better ways to divorce your spouse than through destructive litigation. Since 2003, I have also been a Parent Coordinator, serving high conflict families as they struggle to implement court orders, and navigate life after divorce.
To sum up: I too am a believer.
I am genuinely grateful for the skills that training in each of these processes, including litigation, has taught me.
I like representing children as a GAL and insulating them from as much of their parents’ divorce as possible.
I really like doing mediations.
I really like doing collaborative divorces.
I still like litigating tough and challenging cases.
I like helping parties work through large and small conflicts, in my role as a Parent Coordinator and appreciate the opportunity to keep children of divorce out of these high conflict situations, by helping their parents resolve these conflicts without going back to court.
The benefits that I recognize in utilizing one of the available ADR processes for divorce, however, are not universally present in each case. The parties who are good candidates for a collaborative divorce might not be good candidates for a mediated divorce. And while one party to a divorce might be ideally suited for any number of processes, it is possible that the other party might not be. As a practitioner of all of these processes, I have always tried to avoid impressing any personal bias on the client’s decision as to the process they might prefer.
Just because I might prefer collaborative divorce, or mediation, does not mean that it is the right process for that particular client in this particular situation.
I know what I am saying is controversial in our ADR community, especially among the converted. I have seen the schismatic effect of this heresy firsthand.
I think that the choice of process, influenced by counsel’s preference, is contrary to the spirit of, design and intent of, all interest-based processes. The benefit of these interest-based processes for the client is that they can choose the process that best fits their situation. The choice belongs to the client, not the attorney.
I am sure all of you have witnessed the failed collaborative, which upon analysis, never should have been a collaborative process (where one party has historically and consistently failed or refused to make disclosures, or act with transparency for example). In many of these instances that I have witnessed, it was counsel’s preference to do a collaborative process, and not the client’s. I know a number of litigation colleagues who have made a cottage industry of picking up failed collaborative processes from other attorneys.
Shoehorning a divorce into the process preferred by counsel, as opposed to the client choosing the process that is best for him or her, does the ADR movement no good whatsoever. In fact, I would argue that the opposite is true: that force-feeding matters that are a bad fit into an ADR process like collaborative divorce or mediation, which ultimately results in litigation, sets our movement back.
I know some colleagues, with whom I have had this discussion, respond by saying they understand that the process choice belongs to the client, but they are nevertheless limiting their practice to only collaborative cases or mediated cases, because they refuse to be part of destructive litigation. In a strange way, that approach gives the potential client’s spouse the choice of who will represent (or at least who will not represent) your potential client. In other words, your client’s spouse could eliminate you as a potential representative of your client simply by refusing to agree to the process you limit your practice to. Should your potential client’s spouse wield that veto power?
Rather, for the last 16 years I have approached this issue as follows: the attorneys, and mental health professionals involved have to be “honest brokers of all processes,” rather than promoters of the process that best suits the attorney’s needs, or the needs of a mental health professional. The client, or potential client has to be presented with all of their potential process options, including litigation, so that they can decide what is right for their situation, and their family. They need to know the benefits, and risks, and opportunities presented by each process option, without bias or influence based on the attorney’s preferred process, so that they can make an informed choice.
It is, after all their, divorce.