How Collaborative Law Can Fail the Litigator

An eye-opening look at how the collaborative law process could fail both litigators and their clients.

Originally published in Divorce Magazine.

By Eddie Stephens, Esquire

For 20 years, I have guided families through the painful and often complicated process of separating married couples when they make the decision to divorce.

Our traditional divorce jurisprudence as placed the resolution of these issues in an adversarial system: as a civil lawsuit in Court.  Attorneys are trained to be zealous advocates, and find a way to win for their client so long as their actions are within Rules of Professional Responsibility.  It’s nice when opposing counsel follows “the Bounds of Advocacy”, however, these ethical rules are aspirational and not mandatory.

The jurisdiction of the Court can be a powerful tool in guiding and protecting clients. When one or both of the spouses are angry or bitter, unfair, not truthful, has a difficult personality trait or even some form of mental illness, the guidance of the Court can be invaluable.  Yet we’ve all seen cases that “should be easy” spiral out of control.  How many families have taken unnecessary damage because these issues are placed in an adversarial arena for resolution?  In my experience, far too many.

This begs the question:  “Is there a better way to do this?”

Recently, Collaborative Law has been advocated by some attorneys and divorce professionals as a replacement for litigation.  The procedures for Collaborative Law can now be found in the Florida Statutes and Rules of Procedure.

Collaborative Law is described by The Florida Academy of Collaborative Professionals as a process that engages a professional team consisting of a lawyer for each party, plus a team for the parties that includes financial and neutral facilitation professionals; in this way, the team helps the parties learn everything they need to know to make the best decisions about their future; retain control over their divorce or other family matters; keep their dispute private; and plan a better future for their re-structured family instead of battling each other in court.

On paper, it sounds really attractive.  As an attorney who tries to approach each case with a collaborative perspective, and despite my skill set as a trial litigator, I liked the sound of it. I became trained in collaborative law.  I know our system has flaws and am personally dedicated to finding ways to improve it to reduce the damage litigation can do to families.

When the Collaborative rules were being considered, the majority of the negative comments were concerning the expense of multiple professionals.  Most matrimonial trial attorneys I have spoken to don’t like the fact that under the current rules, as soon as one party wants to end the collaborative process or if either party may sabotage the process.  In this case, the collaborative attorneys must withdraw and the parties have to start from scratch with new attorneys. The family ends up in the courtroom anyway.

Despite my best efforts in the 13 months I was in my collaborative practice group I could neither convince any of my clients to enter the process nor was I assigned a case by my practice group.  In order to put to use what I had learned in the group, I offered to represent my first case pro bono.   While I still could not convince anyone to use the collaborative process, my litigation practice continued to thrive.  I never had the opportunity to work a collaborative case, but I remained hopeful.

Recently, something happened in one of my litigation cases that has changed my entire perspective about being a member of a collaborative group and opened my eyes to different ways attorneys can exploit the collaborative process in litigation.

I represent a client in a disputed custody case. The matter required a social investigation.  My client had already gone through the litigation necessary to get the court to assign a social investigator, the investigator had been retained, and the investigator had started the investigation.

I received a motion to disqualify the social investigator based solely on the fact that the social investigator and I were members of the same Collaborative Law practice group.  According to the attorney who filed this motion, the investigator had to be biased merely for being in the same collaborative group. Read the redacted motion here.  In my opinion, this is the kind of litigation that puts the entire profession in a negative light.  The colleagues with whom I showed the motion agreed that the argument was not legally supported, and suggested a 57.105 fee motion was appropriate.

READ THE MOTION TO DISQUALIFY HERE

The damage was done.

Before the hearing on the motion to disqualify the social investigator, and even before the 20 day 57.105 safe harbor period passed, I received the attached redacted letter from my client’s social investigator resigning from the case because of a “perceived bias”.

READ THE LETTER OF RESIGNATION HERE

Reading this letter changed everything.  Because an attorney filed what I (and several others) believe to me a meritless motion, he was able to “pick off” the Court appointed expert because of my membership in the same collaborative group.  The expense and delay the frivolous motion caused my client will be significant.   This is the kind of move that engenders hard feelings and bitterness in litigants.

Whether the social investigator philosophically should have resigned under these circumstances is the subject for another time.  But, the message to me was clear.

So long as there are attorneys out there willing to exploit membership in a Collaborative Law Group, I am concerned about exposing my clients to the costs and other consequences that result from sharp tactics.  I resigned from my Collaborative Law group immediately to protect my present and future clients.

While I encourage all matrimonial law and professionals to find ways find ways to lessen the damage of the divorce process on the families and children of the State of Florida, Collaborative Law is not the solution – and in fact may create more problems – for me and my clients.

6 thoughts on “How Collaborative Law Can Fail the Litigator

  1. I’m sorry this happened to you and your client. I feel the same as you. While in theory collaborative sounds great, in reality it is, I believe, only suitable in the rare uncontested case. In those cases, you really don’t need collaborative as representing one party only can still yield the same result. I was eager at first but now will not participate – especially since your illustration of the flaws in the system. Thanks for sharing.

    • I agree Pam, two competent ethical attorneys should be able to resolve most divorces without the need for all of the additional expense and rules attendant with collaborative law.

      An attorney does not necessarily need to sign a “collaborative contract” to work collaboratively.

  2. It is unfortunate that you have taken it upon yourself, Eddie, to continue attacking the Collaborative Process when it had nothing to do with the social investigator resigning in your case. The letter from the social investigator reflects that the resignation was due to an appearance of impartiality. That could have occurred if the allegation was that you and the social investigator belonged to the same church, the same political party or even the Family Law Section of The Florida Bar. The Collaborative Process actually is NOT only for rare uncontested cases, as Ms. Pedlow wrote above. I have handled over 50 Collaborative matters and I can assure you that they were not uncontested. Uncontested cases do not even need attorneys. For your information and the information of your blog readers, Collaborative cases in Florida are successful 94% of the time. I suggest that you, Ms. Pedlow and your other blog readers read Florida Statutes Section 61.55, in which the Florida Legislature stated the public policy of Florida as follows, “It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.”

    • Mr. Merlin:

      I find the words you use interesting. You state that I am “attacking” and “spreading lies about collaborative law”. I am doing neither. I am expressing an opinion and sharing my experience.

      You do have a flair for exaggeration. I always believe, the harsher you attack your critics the less credibility you have.

      Everyone is entitled to an opinion.

      As Sgt. Hulka once told his recruits, “Lighten Up, Francis”!

      • Robert J. Merlin

        Interesting comment Eddie because you are the one who has gone out of his way to attack the Collaborative Process, even though it had nothing to do with your case. Your argument, while your opinion, is merit less.

      • Mr. Merlin:

        I do do not have a financial stake in defending or criticizing this system. It’s interesting the only people claiming I am “attacking” this system have a financial stake in keeping the system going. While you may not like my opinion, it is not influenced by financial bias. I don’t think you can say the same.

        Perhaps you should approach this more collaboratively! 😉

        Peace and Love….

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