collaborative law

“Collaborative divorce” is the new buzz word in family law practice. What are the down sides of “collaborative divorce”?

Lawyers who participate in the “collaborative divorce” movement use methods borrowed from more established alternative dispute resolution procedures to resolve family law disputes without litigation. However, unlike more accepted dispute resolution procedures, in “collaborative divorce” the lawyers and their clients agree that they will not engage in formal discovery, will voluntarily disclose information, and will settle the case without court intervention of any kind .

Good Lawyers Routinely Practice Cooperatively

“Collaborative divorce” supporters intimate that their process is unique because lawyers commit that they will not “threaten, insult, intimidate, or demonize” other participants in the divorce process. This description fits the vast majority of family law clients, including most of those whose cases end up in court. “Collaborative divorce” supporters want to reduce the costs of the process by streamlining the discovery process. Most lawyers agree – and most of their clients concur – that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.

Unsettled Legal Issues.

The Effectiveness of a “Collaborative Divorce” Approach

The lawyer representing a difficult client must either advocate for the client’s unreasonable position or take a public position adverse to the client’s view.

Delay, Expense, and New Counsel. Under the “collaborative divorce” approach, both lawyers must withdraw just at the time that an attorney who knows the case is most effective.

Malpractice Issues

In collaborative divorce, the parties and their respective lawyers sign a single contract, at least arguably creating obligations of each lawyer to the other attorney as well as to both clients. The collaborative law contract puts each lawyer in privity with both parties and with opposing counsel, creating a basis for contract claims to which an attorney is not exposed in standard practice. Moreover, the collaborative divorce contract assumes, though it does not specifically state, that each client completely waives his/her attorney’s obligations to maintain client confidentiality and not to inform the other party or lawyer of his/her legal, factual, or strategic errors.

Assume that Attorneys A and B and their clients have agreed to proceed with a “collaborative divorce.” Attorney A makes a mistake that disadvantages client A and benefits client B. If Attorney B fails (deliberately or negligently) to correct the error, can client A sue Attorney B for malpractice? If Attorney B corrects the error, to his/her own client’s detriment, can Client B sue Attorney B for malpractice? Does the existence of a “collaborative divorce” contract provide a defense to malpractice?

If, unknown to Attorney A, Client A fails to provide full financial disclosure and thus disadvantages Client B, can Client B sue Attorney A for malpractice? If Attorney B fails to do so, can Client A sue Attorney B for malpractice? If Attorney B raises the issue, can Client B sue Attorney B for malpractice?

“Collaborative Divorce” May Increase the Cost of Divorce

“Collaborative divorce” is marketed as a cost-saver for clients, but is it really? Most lawyers schedule contested trials only after repeated attempts to arrive at negotiated settlements. In “collaborative divorce,” if negotiations fail the clients have to begin again with new counsel and pay a new lawyer to learn the complexities of the case. If the clients have a relatively simple financial situation, they probably can’t afford to pay twice. In some cases, clients may save some money, though there is no evidence that “collaborative divorce” is less costly or less time-consuming than any cooperative settlement approach.

Is “Collaborative Divorce” a Better Process?

Advocates of “collaborative divorce” say that clients are motivated to learn problem-solving strategies because there are no “court threats.” Experienced attorneys know, however, that with many clients it is precisely the ability to schedule court dates and set deadlines that provides the impetus for settlement.

“Collaborative divorce” supporters also claim that clients are “more satisfied” with the results achieved with the collaborative approach.

Cooperative Divorce

Let’s call it “cooperative divorce.”

The “cooperative divorce” practitioner would:

Encourage the client to take a broad view and consider relationship issues.

Use the legal system as a resource to help settle the case if appropriate.

Committing to “cooperative divorce” avoids the problems of “collaborative divorce” and improves the practice of family law.

Collaborative Divorce or Cooperative Divorce?

Collaborative Consensus Proposal

General Education and Special Education teachers should seek professional training in developing literacy-rich lessons, and classes should reflect this training.

iii) Recognition that Special Education teachers often build trusting relationships with students outside of class, enhancing the classroom climate.

(5) Classroom teachers should learn from each other’s strengths and weaknesses with respect to curriculum, teaching strategies, and experiences in collaboration.

(1) Classroom Teacher Relationship

(c); Classroom teachers;should continue to discuss how to share teaching and grading responsibilities.

(a); Time for classroom teachers to work on common planning and common grading is essential.

; ; initiate regular contact with classroom teachers regarding student concerns

(c); Classroom teachers should discuss the responsibility of parent contacts.

c); No more than 14 Special Education students in classes that are not collaborated with a Special Education teacher. The student may be an IEP or general education student.;

• The class will focus on literacy and numeracy skills. The curriculum, developed by the teacher, should address reading, writing, math skills.
• The goal will be to keep this class to 10 or less and a teacher aide if possible.

c); Include teacher input in the process of pairing teachers.

f); Offer and encourage opportunities to showcase student work at the standard level.

h); The “teacher of record” will be the General Education teacher for all collaborative classes and this will be indicated on official records.

i); Provide time for collaborative work:

i); Support PLC’s comprised of collaborative teams.

ii) Pay collaborative teams for summer planning (8 hours per teacher).

vi) Protect common planning by avoiding study hall assignments that compete with; collaborative planning time.

viii) Reserve one CARE period per week for Special Education collaborative teachers to;

6); What should collaborative professional development look like?

f); Classroom teachers should have opportunities to observe other collaborative teams in their subject area, even at other schools.

a); Surveys from students, parents, and teachers (not just collaborating teachers).

f); Discussion groups with just General Education teachers, just Special Education teachers, and combinations (teams meeting together). ;

g); Discussions between teacher and administrator during Teacher Performance Appraisals and other evaluations.