(Second of Two Parts)
In the May issue, we explored some basic questions concerning collaborative law, an innovative and highly successful alternative dispute resolution process, used primarily in dissolution cases, that is quickly gaining a foothold in Washington and elsewhere. This month, we’ll take a look into other areas of this growing practice.
Information and Discovery
Q. Is information hidden or kept secret in collaborative law?
A. Collaborative law is a “transparent” process. There are several protections built-in to ensure that adequate information is exchanged:
- Normally, at the beginning of a case, all parties sign a contract that they will provide all relevant information, whether or not requested. The agreement also requires the parties to provide reasonably requested information. They also typically agree not to take advantage of mistakes of the other, but instead to disclose mistakes and seek to have them corrected. Finally, at the end of the process, the parties normally sign a sworn statement that they have provided all material information. The clients are therefore protected by contract.
- In most cases, a neutral financial specialist is retained by the parties to review the financial information. This means one more set of eyes, experienced in finance, reviews the financial information and flags questions and inconsistencies.
- Attorneys review the information and monitor their own clients to ensure that all are participating in accordance with their contractual obligations.
Q. Since you don’t go to court in collaborative law cases, it must be impossible to require third parties to provide discovery.
A. Conventional discovery procedures to obtain information from third parties are available in collaborative law cases by mutual agreement. All parties sign an agreement to provide requested information. Mutual consent to subpoena information from third parties, when necessary, follows logically from that agreement.
Attorneys
Q. Do collaborative law attorneys inform clients about the law?
A. Yes. Clients need to be informed of the law as part of the professional obligation that attorneys have so the clients can make good decisions.
Q. Is collaborative law practiced by attorneys who are less skilled at litigation?
A. All fields of law have attorneys of different experience and skill levels. In that respect, collaborative law is no different from other areas of law or, for that matter, any other profession. Among collaborative law attorneys are highly skilled and accomplished attorneys, including litigators and non-litigators. In fact, several Fellows of the American Academy of Matrimonial Lawyers have been instrumental in the development and growth of collaborative law since it was first formulated in 1990.
Q. Wouldn’t the collaborative law process work better if the attorneys could represent their clients in court if the case ends?
A. The disqualification of attorneys from representing their clients in any adversarial proceeding is an essential part of collaborative law and is equally essential to creating the safe and effective environment that allows the process to work. Disqualification allows the clients to openly express concerns and interests in front of both attorneys, and allows the clients to truly understand:
- Neither lawyer will use anything said against them.
- Both lawyers are working solely toward settlement.
- Both lawyers are truly committed toward settlement.
It also allows attorneys to work together to facilitate the process in a manner that would otherwise not be possible.
Q. If you can’t go to court, are clients on their own filing the petition and entering orders?
A. Collaborative law attorneys are only disqualified from going to court on disputed matters. Collaborative law attorneys routinely file petitions, appear at pretrial conferences and prepare agreed joint motions and orders.
Clients
Q. Does collaborative law only serve wealthier clients?
A. Since the collaborative law process usually costs clients less than adversarial negotiations, it is as suited for clients of modest means as for wealthier clients. No legal process is inexpensive and that includes collaborative law.
A growing number of collaborative law attorneys are participating in pro bono and reduced-fee programs for those who are less able to afford their services. Sadly, as with all such programs, need far outstrips supply.
Q. For collaborative law to work, don’t both parties need to have similar education, sophistication and skills?
A. No. The process is designed to accommodate different levels of education, sophistication and skills. Full support is provided to educate the less-sophisticated spouse to be able to fully participate.
Q. Is collaborative law a way for the spouse who is manipulative to take advantage of a power imbalance over the other spouse?
A. Human conflict inherently has power imbalances. In a litigated case, there will be a power imbalance between a skilled attorney and an unskilled one. Similarly, in an adversarial system, a power imbalance can be perpetuated by the client, for example, by being overly aggressive or by engaging in deception. At an adversarial settlement conference, a power imbalance can occur from abusive negotiation tactics.
The collaborative law process is also subject to power imbalances; however, what makes it unique is that literally all professionals (both attorneys) work toward leveling known imbalances. Remember that the goal of collaborative law is to reach a durable agreement, which can only be reached if the parties own their resolution, which cannot occur from a place of capitulation.
Q. Is collaborative law unsuited to dealing with emergencies?
A. Emergencies are very unusual in the collaborative law process, because both clients are usually well aware that their own behavior affects progress. The very few emergencies that occur are usually handled quite well by team intervention (instead of court intervention). In the extraordinary circumstance where court intervention is needed (e.g., a DV protection order), clients are free to exercise the emergency provisions in their participation agreement to seek immediate relief from the court.
What Happens When Collaborative Law Cases Prematurely End
Q. Do collaborative law cases often fail?
A. No. Collaborative law process is specifically designed to help parties reach settlement. According to large national studies, about 94% of collaborative law cases end with a settlement within the process. Locally, we are seeing similar figures. Of those few cases that do not settle initially, the overwhelming majority settle in an adversarial negotiation.
Q. Are there clients who leave the collaborative law process to get adversarial representation?
A. The collaborative law process is not right for everyone, just as the adversarial process is not right for everyone. Nearly every active collaborative law attorney has seen potential clients who leave the adversarial process after being conventionally represented. It is appropriate that clients find the process that best suits them and their situation.
Q. If the collaborative law process fails, does discovery need to be re-done?
A. If the process fails because a party withholds information (an exceptionally rare occurrence), then information that was not provided will need to be discovered. Ultimately, even with formal discovery, parties may improperly withhold information, just as they might improperly withhold information in the collaborative law process.
However, the information exchanged in the collaborative law process may be used in subsequent representation. The confidentiality in the process extends to discussions, expert reports and information created specifically for the collaborative law process. All underlying data that have been exchanged remain fully usable.
Q. If a collaborative law case ends, doesn’t the client have to pay duplicate attorney’s fees for the same work?
A. Whenever a client changes attorneys, there will be some additional fees to bring the new attorney “up to speed.” But even on those few occasions when the collaborative law process ends without reaching a settlement, the clients are often benefited because they will be better informed, much or all discovery will have been completed, and remaining issues often will be narrowed.
Q. Does it disadvantage the client that lawyers practicing collaborative law are disqualified from going to court?
A. There is only one main disadvantage from disqualification. In the rare circumstance when the process terminates prematurely, new attorneys must be retained. That adds some inconvenience, delay and expense. Balanced against those disadvantages are the many advantages that clients experience even when the process is not successful (the narrowing of issues and exchange of information, for example), not to mention its very high success rate.
J. Mark Weiss is a Seattle collaborative law attorney and mediator. He has practiced law since 1987 and is a Fellow of the American Academy of Matrimonial Lawyers. Weiss was named 2005 “Ken Weber Attorney of the Year” by the Washington State Bar Association Family Law Section. Weiss currently is a director of King County Collaborative Law. Weiss is a frequent speaker on family law matters and a collaborative law trainer. © J. Mark Weiss 2008.
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