Student Spotlight: Collaborative Lawyering in Family Law: An Effective Emerging Trend Among Clients and Attorneys

Essay by Amanda M. Parrish

Introduction

Collaborative lawyering serves as an alternative to litigation where the attorneys and parties work as a group and attempt to create a resolution together. While collaborative lawyering may sound very similar to mediation, distinct differences make it a more advantageous option, especially in divorce cases. Collaborative lawyering creates a cooperative atmosphere that allows parties to focus on interests, rather than positions, thus leading to a fair result. However, critics of collaborative lawyering argue that the process focuses too much on trust and success. Furthermore, critics argue that collaborative lawyering prevents attorneys from fulfilling their ethical duties due to the cooperative atmosphere. However, when used properly, collaborative lawyering is an efficient, economical, and cooperative process that effectively resolves divorces and eliminates the need for rigid litigation.

I. What is Collaborative Lawyering?

The structure of collaborative law is unique to ADR. Two clients and two attorneys work together to find a comprehensive and fair settlement for all issues. [1] Collaborative lawyering also aims to be efficient, sometimes successfully arriving at a settlement within two sessions. [2] Rather than presenting disputes in court, collaborative lawyers work with clients in four-way meetings to discuss broad interests and priorities, rather than narrow, fixed positions. [3] Collaborative lawyers serve as the managers, teaching clients how to use interest-based bargaining. [4] They also share information that will help them manage conflict and set agendas for the four-way meeting. [5] Collaborative lawyers strive to create agendas that lead to success, rather than more dispute, in order to build client confidence and trust thus making collaborative lawyering successful. [6] As attorney Ellen Rittgers stated, "The key to a successful collaborative law case is good lawyers who are committed to the [collaborative] process; lawyers who will work well together and focus on interests and cooperation between the clients, rather than just fixed positions." [7] Thus, cooperation among all four parties is essential to the process.

II. Analysis of Collaborative Law in Divorce

While collaborative lawyering provides numerous advantages for everyone involved, including lawyers, clients, and children, the process is not perfect. Critics argue that the process is too dependent on human response to trust and an attorney disqualification requirement should the process fail. Thus, opponents argue the process allows for more variation than litigation.

Collaborative Lawyering Depends on Trust

The first criticism of collaborative lawyering is that it functions on trust. "To do collaborative law, both parties must have just about that much good will," commented Stuart Webb, founder of collaborative law. [8] He argues that without that little bit of trust, clients should not use collaborative law. [9] Other professionals agree that the foundation of collaborative law must be trust. [10] "The number one reason collaborative fails is because the parties mistrust each other." [11] Thus, many proponents and opponents agree that collaborative law is inappropriate if parties do not have trust.

However, while many collaborative lawyers and experts argue that the process should not be used if there is any significant mistrust toward the opposing party, attorneys should not be quick to dismiss collaborative lawyering. [12] Rather, attorneys should conduct reality testing with clients, comparing what might happen in the collaborative process with what would likely happen in litigation. [13] If after evaluating both options the client remains hesitant about using collaborative lawyering, only then should the attorney dismiss the process. [14] Nevertheless, the process should never be used if one or more parties have reservations about the trustworthiness of their spouse. [15]

The attorneys must also trust one another to create the cooperative atmosphere. [16] The initial relationship between the collaborative attorneys is essential to establishing the trust necessary to make the collaborative process successful. [17] Trust between attorneys helps make discussion and cooperation more successful and allows for a smooth transition into the four-way meetings. [18] Once that trust develops, the attorneys feel more comfortable expressing their clients concerns and comments on the progress of the collaborative process and therefore accelerate settlement conversation. [19] If trust is not present, it is more difficult to ensure effective participation because the participants are more hesitant to openly communicate. [20]

Collaborative Lawyering and the Disqualification Agreement

Secondly, if collaborative lawyering fails, the entire divorce process must begin anew. The Participation Agreement clause requiring disqualification of counsel if the process fails raises numerous ethical and professional concerns about the legitimacy of collaborative lawyering. The Participation Agreement necessitates that attorneys resign if the case resorts to litigation. [21] Consequently, clients must retain new attorneys. [22] The financial and emotional costs spent during the collaborative process become virtually worthless. [23] The attorneys who participated in collaboration are limited as to what information they can share with new counsel. [24] While the Disqualification Agreement seems like an attorney withdrawal from a traditionally executed divorce case, it is different because collaborative parties primarily control whether both attorneys must terminate representation. [25] As a result, it is imperative that clients understand the ramifications of ending the collaborative process to prevent undesired consequences. [26] "[M]any [Collaborative Law] clients might understand the formal operation of the disqualification agreement, but some might assume that no one would invoke it in their case and some might underestimate the consequences." [27] Consequently, clients must understand the importance of such a powerful weapon because if used improperly, the act could result in unwanted monetary costs, time commitments, and procedural changes. [28]

This requirement to seek new counsel if collaborative lawyering fails can also become an incentive in the collaborative process to maintain cooperation and negotiation, because starting over is not an attractive alternative. [29] While this incentive may often create advantageous outcomes in collaborative lawyering, there is potential for the settlement goal to compromise parties' interests, particularly those of the weaker party. [30] For example, if the collaborative process reaches impasse, the strong desire to settle and thus succeed in collaborating may cause attorneys to persuade parties to accept an agreement they may not support. [31] "[S]uppose that a wife requests permanent spousal maintenance and that her husband adamantly opposes her request. . . . If the wife's lawyer defines success as settlement . . . that lawyer is likely to encourage the wife to forego her request." [32] This misguided view of success caused by the disqualification agreement can thus compromise the effectiveness of such an open process.

It is true that lawyers might pressure clients to settle in the collaborative lawyering process out of a desire to succeed. [33] However, because clients are much more involved in negotiations during the collaborative process than in traditional settlement, clients are more likely to recognize the unwarranted pressure to settle and thus exercise their power to reject attorney pressure. [34]

Attorney Duties as a Collaborative Lawyer: Fulfilled or Neglected?

Thirdly, there has been debate concerning the role of collaborative attorneys. One critic argues that collaborative attorneys do not fulfill their ethical duty as zealous advocates for clients. [35] The American Bar Association (ABA) Model Rules of Professional Conduct outline specific duties that lawyers must fulfill for clients, society, and the legal profession. [36] Under Model Rule 1.3, a lawyer must act on behalf of the client with reasonable promptness and diligence. [37] This entails pursuing the matters of the client despite any inconvenience to the attorney or other opposition. [38] The attorney must also exercise all available ethical and legal measures necessary to vindicate the client's cause. [39] Consequently, it is argued that collaborative lawyers do not fulfill the zealous advocate requirement because of the cooperative nature of collaboration. [40] The collaborative model does not place the entire focus on the client, but rather there is more focus on neutrality skills, such as open-mindedness and creativity in conflict resolution. [41]

Furthermore, the requirement that an attorney withdraw from the case if the process terminates also raises questions about fulfillment of ethical duties to the client. The ethical rules for attorneys require that the attorney exercise all efforts to avoid prejudice to the client's rights in further action with another attorney. [42] Usually, the withdrawing attorney fully informs the successor of the facts and circumstances of the case at issue. [43] However, the Participation Agreement of collaboration prevents the withdrawing collaborative lawyer from disclosing information that might compromise the confidentiality of the collaborative process. [44] As a result, the potential for prejudicing a client's cause greatly increases, as the succeeding attorney may not be sufficiently informed to best protect the client's rights. [45]

However, despite criticism, collaborative lawyering attorneys sufficiently satisfy their ethical duties as zealous advocates. [46] While the zealous advocacy to achieve a desirable result for the client is not the only concern, the collaborative lawyer has an absolute commitment to reach a settlement that is mutually agreeable to the parties. [47] Thus, mutuality pales whenever the result is not agreeable to the attorney's own client. [48] Ethical duties are not missing from the collaborative process, but rather "[w]hat is missing from the lawyer's role . . . is the puffing, posturing, and positioning that is confused by many with effective advocacy or zeal." [49] Thus, the term "zeal" simply involves "vigorous, diligent representation" to enable achievement of a client's justifiable objectives. [50] The collaborative process does not require sacrificing a client's interests, but rather seeks to resolve the dispute void of litigation. [51]

Furthermore, collaborative lawyering more than fulfills attorney ethical obligations because it seeks to provide better ways to resolve disputes. The Model Code of Professional Responsibility urges lawyers to recognize the deficiencies of the legal system and find alternative legal methods to correct deficiencies. [52] Collaborative lawyering satisfies this obligation. The process seeks to minimize the tension and intimidation involved with litigation by reducing the amount of time required to resolve the dispute. [53] Furthermore, the process aims to increase the amount of client involvement, which is virtually absent in litigation. [54] Thus, the innovative attorneys clearly fulfill ethical obligations as they refuse to use ineffective and destructive traditional methods.

While there are questions about the ethical considerations involved in attorney withdrawal, the Participation Agreement for collaborative law quiets criticism. Clients and attorneys sign the Participation Agreement in the beginning that clearly outlines the withdrawal consequences if collaboration fails. [55] Pauline Tesler, collaborative law attorney and author of several articles and books on collaborative law, suggests that attorneys fulfill their ethical duties regarding withdrawal as long as they fully advise and counsel the client on the processes, responsibly terminate representation, and inform the client of future possibilities. [56] "If the lawyer attends carefully to this aspect of the task, it would seem that the lawyer is fulfilling his or her professional responsibility to the client." [57]

So what then is the role of the collaborative attorney? Attorney Stuart G. Webb's initial letter to Judge A.M. Keith of the Minnesota Supreme Court outlined the goals he sought for collaborative law attorneys. [58] Webb emphasized problem-solving skills, knowledge of emotional issues, and the use of analysis and creating alternatives, as opposed to trial skills. [59] Ultimately, the goal of a collaborative attorney is to develop win-win settlement and negotiation skills. [60] Such skills shape the role as a zealous advocate with the ability to integrate emotions and long-term situations. The end result is therefore a resolution that benefits the client financially and emotionally, and helps to preserve some positive interaction among the disputing parties.

Conclusion

Collaborative lawyering is spreading across the nation as an attractive alternative to litigation for divorce. At least 10 states now have collaborative law groups, including Ohio, California, and Florida. [61] The non-confrontational, cooperative characteristics appeal to clients and attorneys. [62] "You walk away feeling like you've accomplished something.. It makes you feel a lot better as an attorney," commented Minnesota attorney Maury Beaulier. [63]

The ethics issues and disadvantages of collaborative lawyering have not hindered the process. As with any choice, the advantages must be weighed against the disadvantages in order to determine its worth. Collaborative practice is not suited for every case; but neither is litigation. Collaborative law presents great advantages that cannot be ignored or rejected by the legal field. These advantages are what make collaborative law an effective, transformative, and peaceful method to resolve divorce.

[1] Pauline Tesler, Collaborative Law: What it is and Why Family Law Attorneys Need to Know About it, 13 Am. J. Fam. L. 215, 219 (1999) [hereinafter Tesler, Collaborative Law].

[2] Interview with Ellen B. Rittgers, Partner, Rittgers & Rittgers, in Lebanon, Ohio (Oct. 9, 2003). Rittgers notes that conclusion of the collaborative process in two sessions is not the norm, but it is possible. Rather, a typical collaborative divorce case will conclude after three or four sessions. Id.

[3] Tesler, Collaborative Law, supra note 1, at 219-20.

[4] Id.

[5] Id.

[6] Id. at 220.

[7] Interview with Ellen B. Rittgers, supra note 2.

[8] Elaine McArdle, Divorce Without the Bloodshed, Law. Wkly. USA, Apr. 3, 2000, at 314.

[9] Id.

[10] Interview with Ellen B. Rittgers, supra note 2.

[11] Id.

[12] Pauline Tesler, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation 187 (2001) [hereinafter Tesler, Achieving Effective Resolution].

[13] Id.

[14] Id.

[15] See id. at 186-87.

[16] McArdle, supra note 8, at 314.

[17] Tesler, Achieving Effective Resolution, supra note 12, at 113.

[18] Id.

[19] Id. at 113-17.

[20] Id. at 59.

[21] See Pauline Tesler, Collaborative Law: A New Paradigm for Divorce Lawyers, 5 Psychol. Pub. Pol'y & L. 967, 997 (1999) [hereinafter Tesler, A New Paradigm].

[22] Id. at 976.

[23] Id.

[24] James K. L. Lawrence, Collaborative Lawyering: A New Development in Conflict Resolution, 17 Ohio St. J. on Disp. Resol. 431, 443-444 (2002).

[25] John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 65 Ohio St. L.J. 1315, 1352 (2004).

[26] Id. at 1358.

[27] Id.

[28] Id. at 1356.

[29] Tesler, A New Paradigm, supra note 21, at 979.

[30] Penelope Bryan, "Collaborative Divorce": Meaningful Reform of Another Quick Fix?, 5 Psychol. Pub. Pol'y & L. 1001, 1015 (1999).

[31] Id.

[32] Id. at 1015-1016.

[33] Tesler, A New Paradigm, supra note 21, at 976 n.24.

[34] Id. at 977 n.24

[35] Lawrence, supra note 24, at 438-39

[36] Id.

[37] Id. at 439.

[38] Id.

[39] Id.

[40] See generally, Lawrence, supra note 24.

[41] Id. at 442.

[42] Id. at 443.

[43] Id.

[44] Id. at 443-44.

[45] Id.

[46] Judge Sandra S. Beckwith & Sherri Goren Slovin, The Collaborative Lawyer as Advocate: A Response, 18 Ohio St. J. on Disp. Resol. 497, 498-99 (2003).

[47] Id. at 499.

[48] Id. at 498-499.

[49] Id.

[50] D. Todd Sholar, Collaborative Law - A Method for the Madness, 23 Memphis St. L. Rev. 667, 679 (1993).

[51] Id.

[52] Id. at 680.

[53] Id.

[54] Id. at 680-81.

[55] Guidelines and Principles Governing the Collaborative Process (provided by Ellen B. Rittgers, collaborative attorney), available at http://www.divorcepage.com/CM/CollaberativeFamilyLaw/Guidelies%20And%20Principles.pdf (last visited Sept. 18, 2004).

[56] Tesler, Achieving Effective Resolution, supra note 12, at 166.

[57] Id.

[58] Letter from Stuart Webb, Attorney to Judge A.M. Keith, Minnesota Supreme Court (Feb. 14, 1990) (on file with author).

[59] Id.

[60] Id.

[61] McArdle, supra note 8, at 314.

[62] Id.

[63] Id.