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.