Boston collaborative lawyer David Hoffman has an op-ed in today's Christian Science Monitor about collaborative law and the new ABA Ethics Opinion approving of it.
Ontario social worker Gary Direnfeld has posted a short television interview about collaborative divorce.
The American Bar Association has issued an Ethics Opinion endorsing Collaborative Practice (a.k.a. Collaborative Law, Collaborative Dispute Resolution, or Collaborative Divorce), and responding to the concerns raised by the Colorado bar association opinion that got so much attention in the media and on this blog.
The opinion is available via the ABA web site, but right now it can be viewed and downloaded only by ABA members. At some point in the near future nonmembers will also be able to download it for a small fee.
The International Academy of Collaborative Professionals has issued their official response to the recent Colorado informal ethics opinion that said it was unethical to practice collaborative dispute resolution using a "four-way" agreement signed by clients and lawyers.
[NOTE: IACP Director Talia Katz explained a few days later that this was only and "abbreviated portion of a longer and more definitive memorandum on
the ethics of collaborative practice. This initial piece was made available for
the convenience of collaborative practitioners and intended only to answer
some of the more pressing questions regarding the implications of the
Colorado opinion. However, it is just the beginning of our response. Stay tuned -
much more to follow..."
I've now read through the Ethics Opinion, responding as I went. You can click on the link below for the full critique including quotes of key passages and my responses to them.
Basically, it approves of Collaborative Law so long as people who are having lawyers sign the Participation Agreements stop doing that, and change over to agreements signed only by the parties. In doing so, however, it makes many disturbing arguments that are dismissive of clients' autonomy, their key roles in their own cases, and their freedom of contract. And it very inaccurately portrays some aspects of what actually happens in collaborative cases.
Half of the Opinion is about another practice called "Cooperative Law," but that part actually has a lot of helpful advice about many of the distinctive things we do in Collaborative practice.
Continue reading "Critique of Colorado Ethics Opinion on Collaborative Law" »
Copies of the Colorado opinion have been circulating although I don't know of it being posted on the web yet.
One major concern in the opinion is the four-way contract that clients in most parts of the U.S. use to commit to the collaborative process -- does it create rights and duties directly between a client and her spouse's lawyer?
If that is the major stumbling block, then perhaps the Opinion's disapproval of collaborative law is not so absolute. In my cases I always try to have the collaboration agreement be signed only by the clients, with the lawyers signing a separate stipulation that is only about their disqualification from representing the clients in contested litigation. There are some of us in Virginia who follow this model -- I don't know if we're a majority within Virginia.
Although I don't think there's any substance to the concerns about the 4-way agreements, it seemed easier to steer clear of any implication, however far-fetched, that there were lawyer-client duties or liabilities between a lawyer and the other lawyer's client; or that there were any duties to the other party that were not consistent with the attorney-client relationship as defined in the collaborative retainer agreement nor with the lawyers' duties to other parties under the ethics rules.
More importantly, we do it this way because is is the clients' agreement, and the clients' decision, to collaborate. The lawyers' and clients' individual collaborative lawyer retainer agreements keep the lawyers from ever being involved in contested litigation between the parties, and the clients' agreement with each other guarantees that they are each hiring their own lawyer with that limitation.
One form of the attorney stipulation is at the end of the client-client contract. It just says,
"THE ATTORNEYS, WHO ARE NOT PARTIES TO THE CONTRACT ABOVE, HEREBY WITNESS IT, AND ACKNOWLEDGE THAT THEY ARE EACH IRREVOCABLY DISQUALIFIED FROM PARTICIPATING IN CONTESTED LITIGATION BETWEEN THESE PARTIES."
[signature lines and dates]
Another is not attached to the parties' contract at all, and is titled "COLLABORATIVE LAW STIPULATION".
This is a breaking story so my treatment of it will be preliminary. Reportedly, the Colorado Bar
Association Ethics committee has issued a formal opinion saying Collaborative Law --
which means both parties to a case making a binding agreement to hire lawyers only to negotiate and advise, not to litigate -- is per se unethical, and that a client cannot validly consent to the withdrawal of his/her
lawyer in the event the matter goes to court. (which is part of what all clients do in Collaborative Law).
There have been several other state-level legal ethics opinions around the country in recent years, all approving of Collaborative Law. This is the first one to disapprove.
Just to clarify, collaborative clients do not give up the right to litigate. They only give up the right to litigate with the particular lawyers they hired. And in return for that agreement, they get the same agreement from the other side, and a process with a whole lot more trust and openness on both sides than in most divorces or other legal cases.
In my opinion, if it actually does ban CL, this ruling violates clients' right to hire the counsel of their choosing, and their freedom of contract. It treats clients like children. In the long run, it cannot stand. Divorce is a dismal business for most divorce clients, and collaborative law is the single biggest thing that has come along to offer serious hope of making divorce less harmful.
I may have more collaborative things to say once I've actually read it.
Meanwhile, there will probably be much more information soon on Pauline Tesler's Collaborative Divorce Newsblog at http://collaborativedivorcenewsblog.blogspot.com/
Link: ABA Young Lawyers Division.
San Francisco Magazine this month published its annual "Super Lawyers" edition, listing the top lawyers in California. Here's an interesting fact that confirms we are seeing a real sea change in what's considered the "normal" way to handle a divorce:
Of the fifty top female lawyers working in all fields of law in the state of California, nine of them are collaborative divorce lawyers, and at least five of the nine no longer will go to court under any circumstances---their practices are limited to out of court, client-centered, interest-based resolution.
The nine are: Margaret Anderson* , Brigeda Bank, Sandra Blair, Kathryn Fox, Belinda Hanson, Jennifer Jackson*, Arlene Kostant*, Madeleine Simborg*, and Pauline Tesler*. Those with asterisks after their names no longer include litigation as a divorce resolution modality. All nine are members of the International Academy of Collaborative Professionals.
EVERY other weekend for the past four and a half years, I've spent three precious days with my two adolescent daughters. We play tennis in summer, ski in winter, travel when the school schedule allows. But no matter where we are, we're all keenly aware of the thin membrane of secrecy that keeps us from being as close as we were before their mom and I divorced.
Like most divorced fathers, I'm caught in exactly the kind of nightmarish situation that experts on stress say to avoid — a great deal of responsibility, but very little power. I'm the major source of support for my children; my financial obligations are set by the state, and my wages automatically garnished. (If I lost my job tomorrow, and couldn't keep up with my payments, a warrant for my arrest would be issued within two months.) But my influence over how my daughters are being raised is limited, sometimes by decisions their mother makes that I have no input into, and sometimes by their allegiance to her when she and I are at odds.
In fact, there are times when these two girls, whom I've loved for a decade and a half, seem like little strangers to me. They'll forget to tell me some detail of their lives — or downright lie if they have to — so I won't feel sad that I've missed something they shared with their mom, or raise issue over some decision she's made with which I might not agree. As a result, I sometimes come away from visits or phone calls feeling shaken, saddened and angry.
My ex and I have been to court over support issues, and we've been to court over custody issues, and the legal battles inevitably trap our children in the middle and force them to choose sides. Sadly, this is exactly what not to do if you want to foster a loving parent-child bond. In a study by a child psychologist, Robert E. Emery, divorcing parents were assigned — by flip of the coin — either to mediate or litigate their custody disputes. Twelve years later, he found, that in families that went through mediation, the noncustodial parent was several times more likely to have weekly phone contact with his or her children.
Unfortunately, the system that our government has set up essentially forces divorced parents into litigation. We need to bring children and their divorced parents, especially fathers, closer together by revisiting our reckless support and custody laws, and the haphazard approach we have toward enforcing them.
Since 1998, the federal government has provided matching funds based on a percentage of money the states collect in child support — a powerful financial incentive for states to mandate and maximize support payments. As a result, parents are discouraged from negotiating a settlement: only 17 percent of current support agreements deviate from state-imposed guidelines, even though studies show that when couples set their own support figure, it's more likely to be paid (and tends to be higher than the state's figure).
And the court's involvement doesn't stop there. If Dad gets a raise, Mom takes him back to court to get more money; when Dad suffers a financial setback, he sues Mom to get his support decreased. Each time, the acrimony — and the legal fees — grow.
But while courts will jail men who can't meet their support payments, mothers who interfere with a father's custodial rights rarely face similar penalties. Often, the only recourse for a dad who wants to see his children more often is to sue, and sue and sue again.
Some fatherhood advocates argue that when mothers fail to carry through on a custody ruling, they should face fines and imprisonment, just like fathers do. That's started to happen: last fall, an Arkansas court sentenced a woman named Jennifer Linder to six months in prison for "willfully and wantonly" refusing to obey visiting orders and awarded custody to her former husband. But sending more mothers to prison can only result in more anger, and more confusion and alienation for the children in question. What is needed is less court involvement, not more.
The first step toward fostering a father and child reunion is to make private mediation of the parenting provisions (physical custody, legal custody and visiting) the standard procedure. Allowing parents the chance to negotiate their support — and possibly give fathers more of a say in how their support is spent — will decrease the vitriol, and let fathers feel more like parents, not just paychecks.
Second, we need to enact and enforce sensible penalties for interfering with visits. Jailing a mother is no way to solve the dispute; neither are financial penalties that hurt her ability to care for the child. But mediation — perhaps compelled by the threat of financial penalty — might be the solution. It's estimated that one in five children of divorce has not seen his or her father in the past year. Without substantial rethinking of our current support and custody law, children will continue to be alienated from their fathers, and lawyers will remain on hand to soak up the resulting legal fees.
Just this month, I received a summons to attend a custody conference at the Allentown, Pa., courthouse, and another letter informing me that an accounting error has left me short on support payments, and that my passport may be suspended. I want to shield my daughters from these harsh truths. So these are the secrets I'll be trying to keep from them as we gather together for Father's Day.
What secrets will they be keeping from me?
Stephen Perrine, the editor in chief of Best Life magazine, is the author of the forthcoming "Desperate Husbands."
People considering divorce--and their friends and families--now have
a new source of important information about professional help options
during divorce--two books that are essential reading for anyone
contemplating divorce or breakup of a nonmarital partnership. It's
been said by a very respected California appellate court judge, Donald
King, that "family law court is where they shoot the survivors."
Authors Peggy Thompson, a clinical psychologist and collaborative
divorce coach, and Pauline Tesler, a collaborative family lawyer (and author of this blog posting), in
their new book, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On With Your Life, place
divorce in its historical, psychological, and sociological context so
that couples will have a better understanding of the magnetic pull that
negative emotion exerts when intimate relationships come to an end. They explain how couples can make use of interdisciplinary collaborative divorce teams for a more civilized and respectful process and more lasting, creative outcomes to divorce-related challenges.
Because divorce is not just a legal event, but a complex and normal human transition (one that affects nearly half of all couples who marry), it is understandable that lawyers and judges alone cannot provide the full range of professional perspectives and services that divorcing partners and their children need as families break down and restructure after divorce. Tesler and Thompson show how interdisciplinary teams of specially trained lawyers, mental health coaches, child development specialists, and financial consultants are working with couples all over North America and Europe to provide sophisticated advice and counsel that pave the way to a civilized, respectful, self-determined out-of-court resolution.
In Collaborative Divorce, law is only one strand of information provided to the divorcing partners, rather than a restriction on creative problem-solving, as it can be in conventional divorces. Collaborative lawyers help their clients identify their own priorities and concerns, and help them expand the range of options that might meet those concerns, in a structured process that emphasizes orderly and constructive problem-solving in direct face-to-face negotiations that include both partners and both lawyers. Minneapolis lawyers Ron Ousky and Stu Webb, in their book The Collaborative Way to Divorce, focus on the role of collaborative lawyers, one of the three professions involved in interdisciplinary collaborative divorce practice.
While it is true that most traditional divorce cases ultimately result in a settlement, the road to settlement can be emotionally and financially draining as lawyers prepare for litigated motions and trials. The settlements themselves often are hashed out literally or figuratively on the courthouse steps, with buyer's and seller's remorse common the next morning. Efforts to set aside or modify these settlements are common, because they represent a papering-over of differences rather than a real resolution of them.
In collaborative divorce, both process and outcome are entirely different because collaborative divorces take place entirely outside the court system, except for the processing of the final divorce agreement and related papers. Collaborative divorce aims at full exploration of a couple's
differences in a constructive spirit aimed at developing maximum consensus and deep, lasting resolution. Where poor communications or strong emotions interfere with problem-solving efforts, collaborative divorce coaches provide focused assistance so that the couple can return to legal negotiations in a productive way. Where better understanding of family finances or development of options that will maximize financial resources are needed, the collaborative financial consultant provides those perspectives. The collaborative child specialist helps children understand the divorce process, and helps them express their needs and concerns so that they can be heard. The collaborative lawyers guide the negotiations and help manage conflict so that constructive solutions can be considered. No agreements are signed until both partners are satisfied with the settlement plan. These settlements last because they reflect a real resolution of differences.
When couples divorce this way, they emerge from the divorce process with enhanced skills and understandings, so that they can co-parent their children after the divorce as effectively as possible. Recovery from the trauma of divorce tends to be quicker, because the focus is on the future, not on the past--and on solutions, not on blame.
Judith Wallerstein, Ph.D., author of The Unexpected Legacy of Divorce, calls Collaborative Divorce "A great step forward. This book will enable spouses to bypass the truly awful, adversarial process of the courts at the time of the breakup." Harvard Law School professor Robert Mnookin, author of Beyond Winning, says, "This practical book should be assigned reading for every divorcing spouse. It describes the advantages of a revolutionary idea whose time has come. . ." Debbie Ford, author of Spiritual Divorce, calls Collaborative Divorce a "brilliant achievement and major contribution" and "a deeply intelligent book." Psychiatrist and peace activist Jean Shinoda Bolen, M.D., calls Collaborative Divorce "truly a new and better way to end a marriage or any intimate partnership." And psychiatrist Thomas Lewis, M.D. calls Collaborative Divorce "a brave and visionary work" and "one of the rare books with a vital lesson, powerfully taught, that will make the world a better place."
Read excerpts from Collaborative Divorce, or buy the book, at www.collaborativedivorcebook.com.
