Hello Little Red Riding Hood.. Welcome to Court!
Well.
In a recent article -
August 3, 2012 in Canada.com - Georgialee Lang suggests that clients be wary of Collaborative Divorce, suggesting that it's a "wolf in sheep's clothing."
Georgialee appears to be a family lawyer of some significant experience and skill practicing in British Columbia, and, as many lawyers who criticize the formal Collaborative Process, her article critiquing the process ends with the now common refrain, "I have always practiced family law collaboratively, I just didn’t adopt the tag."
The theme of her article, essentially, is that:
a) Collaborative Divorce misrepresents itself:
"Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts.
It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts”, one can easily imagine spiralling costs. In one case involving a short marriage with no children, the collaborative process cost a couple $55,000.
This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst."
b) Collaborative Divorce is just another way of strong-arming:
"But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. In one respect they are like “wolves in sheep’s clothing” as they implement strategies usually reserved for “bulldog” lawyers, including the dreaded “Nothing is settled until everything is settled” and “We refuse to counter”, driving one party to negotiate against him or herself."
So.
What do we, as Collaborative Lawyers, do in response to this?
Well.
First thing we ought not do is ignore possibly valid criticism.
We should not be marketing or describing collaborative divorce as a "money-saving" process. It could be. But then so could arbitration, or mediation, or flipping a coin to determine custody of a child. The value of any choice should not be how cheap it is, but, rather, how effective it is.
And that leads to a second potentially valid critique.
If we are not careful, a collaborative divorce can become overly prolonged, inefficient, and, in the bargain, excessively expensive relative to the results obtained.
The clients and the lawyers must be diligent in assuring that collaborative meetings are productive, that they are finding results for the parties, and are not misusing the process to either prolong, unnecessarily, discussion without purpose or creating added expense without results.
Particularly in a case where one party is paying all of the costs of the process, there can be abuse. The clients and the lawyers should be alive to that concern, and be prepared to address it, if need be, and, in an appropriate case, to end the process where progress is not occurring.
Beyond that, I take some offense to her suggestion that "
make no mistake... collaborative lawyers are still out to get the best deal they can for their clients." If the suggestion is that collaborative divorce is just another way of getting "the most dollars possible" or paying "the least dollars possible", in my opinion, that's clearly wrong. And it either betrays an ignorance of the process on Ms. Lang's part (my guess), or perhaps an effort to "protect turf" by a litigator.
I have to say, I have encountered collaborative files that have become positional. Files where the collaborative lawyer, while trained, didn't fully make the leap that positional bargaining has no place in a collaborative file. Who didn't understand that the traditional approach of seeking to threaten, cajole, or manipulate to obtain the greatest amount of financial benefit (or time with children) is overly narrow in addressing a client's interests, and, in general, has a tendancy to create an atmosphere in which clients are more likely to make poor decisions about their settlement options.
But those experiences have been very, very limited.
The vast majority of collaborative files, in my experience, have lawyers who have comfortably removed their own interest in the outcome. In other words, they are not "trying to get everything they can possibly get" for their clients. They are invested in empowering their clients to fully and completely understand their options, their legal status in the matter - and the "big picture" which will, most certainly, include issues relating to entitlement to property and support issues and how that will impact their future. However, the collaborative process allows parties to expand their view of what their full interests are - including the importance of considering the impact of their choices on their children and on themselves - in which money received or paid is perhaps only one of several factors to consider.
So.
A "wolf in sheep's clothing"?
Hardly.
But, as a litigator of some 26 years experience, I can guarantee you one thing: the court system is DEFINITELY no place for little red riding hood.
