Wednesday, June 02, 2010

Collaborative law: is it just the "trend of the week"?

"Collaborative law" seems to be the buzzphrase of the moment in family law circles (certainly collaborative lawyers are always eager to sing its praises), but just how important is collaborative law, and what role is it likely to play in the future? Is it the "new big thing", or just the latest fad?

An article in Crain's Chicago Business, linked to by Florida Divorce, gives a progress report on collaborative law, and I think that its findings can best be summarised as 'mixed'. The article does give examples of collaborative law successes, but I do find it hard to disagree with lawyer David Novoselsky, whose client is suing his former collaborative lawyer: "If you have two reasonable people and two decent lawyers who are interested in helping clients, you don't need to go through this formal process that's been named 'collaborative law.'"

Novoselsky says that collaborative law is a 'boondoggle' (a wonderful American word meaning 'a project that wastes time and money'), and indeed as the article states, many couples attempt collaboration only to find that it breaks down and they then have to go the conventional litigation route, having wasted considerable time and money (one man mentioned spent $35,000 on a collaborative divorce before having to quit). The fact that the parties must instruct new lawyers if the collaborative process breaks down only adds to the expense.

The lawyer who took on the case of the man who wasted $35,000 suggests, perhaps somewhat unfairly, that collaborative law has created a cottage industry for lawyers who can't stomach the stress and aggravation of trying a case and "does nothing to serve the client at all." I can't see that being the case over here, at least not yet, as I don't think there is the volume of collaborative work available for a lawyer to specialise in it and nothing else.

Is collaborative law just the "trend of the week", as Novoselsky also described it? Well, it's certainly not a panacea, as I'm sure any collaborative lawyer will agree, but it does seem to be here to stay. Perhaps the best way to view it is as another tool, along with mediation, available to couples who want to resolve their differences between themselves, without asking the court to do it for them, and just as with mediation those couples must be prepared for the possibility that the tool will not be up to the job.

4 comments:

  1. Hi Mr. Bloch !
    I appreciate your conclusion that Collaborative Practice is "another tool". While I believe it is a very good tool, it is not always an "easy" one with which to work.
    I have already commented on the Crain's article you mention and some of the mis-perceptions that it conveys, so I won't repeat those here. I will only say that as important as training is for the professional, education of the client is also critical in choosing the right tool.
    I believe the decision should be based not simply on some expectation of "saving money" or "it'll be quicker". Instead, the choice of Collaborative Practice should be based on the desire to craft a result that possibly works better for the parties and leaves them better able to continue to work together as they move forward.
    I don't know the facts/circumstances of the case that led to the lawsuit. I might wonder whether perhaps the 'hope' of all involved for a resolution might have blinded them to challenges that showed themselves early on. Or, what sometimes happens is that things drag on, much like litigated cases do, with meetings taking the place of "status calls" to court where little has happened since the last one and all that is agreed to is the next time to "check in".
    I'm sure you are well aware of the large number of complaints and lawsuits borne of divorce litigation where the party complains that the attorney "wasted time". And time can certainly be "wasted" when those involved do not hold themselves and each other accountable to an appropriate agenda and do that which must be done between meetings. In Collaborative, this is a responsibility shared by the parties as well as the professionals. E.G., if information is to be gathered, it makes a difference whether it takes the parties 2 weeks or 6 months to do so.
    While I respect Mr. Novoselsky's opinion, he is in the position of advocate for his client. It is not, after all Collaborative Practice which is being sued, but one lawyer who is being accused of being dilatory. And I know I have heard many times the claim that the litigation system is a 'boondoggle' maintained simply to make lawyers rich by wasting time with motions and meetings and court calls and demands, etc., that don't actually serve the clients.
    Again, I agree with you that Collaborative Practice is indeed "a" tool. Its effective use requires not just training, but a genuine willingness to look a little bit differently at the job being done. It also requires that those involved be conscious at all times of whether or not it is a good tool for the job being done, and be willing to change tools if it is not.

    carl Michael rossi, JD, NCC
    Excecutive Director, Collaborative Practice Professionals of Illinois
    http://cppillinois.com/

    ReplyDelete
  2. Many thanks for that.

    Oh, and by the way, it's 'Bolch'!

    ;-)

    ReplyDelete
  3. D'OH!
    My apologies, Mr. Bolch!
    I claim Techzymers....i.e., sometimes I just plain mess up. ;-)

    ReplyDelete

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