Dr. Judith Gerhart, CFP
Certified Divorce Financial Analyst 
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Good Lawyers Routinely Practice Cooperatively
August 28, 2008
Even the most enthusiastic supporters of “collaborative divorce” concede that the concept of settling cases rather than litigating them is hardly novel. Capable family law practitioners have always directed their effort and creativity toward reaching agreement rather than duking it out in court. It isn’t news to anyone that litigation is expensive - sometimes prohibitively so - and that the most satisfactory settlements derive from skilled negotiation between capable counsel rather than a court-imposed resolution of disputed issues. How does the idea of “collaborative divorce” differ from what experienced practitioners do as a matter of course?
Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and value assets, set and meet scheduling deadlines, and otherwise facilitate resolution of the case. They respect legitimate positions taken by the other party and encourage their clients to be realistic and respectful as well. They are willing and able to compromise, and they are creative in crafting acceptable resolutions of disputed issues. “Collaborative divorce” supporters intimate that their process is unique because lawyers commit that they will not “threaten, insult, intimidate, or demonize” other participants in the divorce process. Good lawyers don’t do that now. The American Academy of Matrimonial Lawyers, which historically has provided a model for good practice nationally, has promulgated “Bounds of Advocacy” that set a high standard for professional courtesy and cooperation.
Emotional cost. “Collaborative divorce” proponents say their process is designed for parties who don’t want to go to war and who don’t want “to hate each other for the rest of their lives.” This description fits the vast majority of family law clients, including most of those whose cases end up in court. Clients almost always care about the emotional cost of adversary proceedings, and about the impact of the divorce action on their children and other family members. To suggest that people who really care will give up the protections provided by court oversight is to do a vast disservice to most of our clients.
Financial cost. “Collaborative divorce” supporters want to reduce the costs of the process by streamlining the discovery process. This also is not a new idea. Good lawyers have always sought to keep formal discovery to a minimum, to share costs of appraisals, to stipulate to values, and to cooperate in other ways to keep costs down. Many experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in person conferences with experts, and other such collegial arrangements.
As the above analysis indicates, the goals espoused by “collaborative divorce” lawyers do not differ in degree or in kind from the goal of the vast majority of the family law bar. Most lawyers try a cooperative approach first. Most lawyers agree - and most of their clients concur - that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.
By Linda Roberson
Posted by Judith Gerhart on August 28, 2008 | Permalink | Post a comment
Topics: Divorce, Separation, Tips |
