At the risk of drawing the ire of some of my colleagues who are collaborative law practitioners, and for whom I have the utmost respect for their belief in and commitment to collaborative law, I wish to share why I am not enamored with collaborative law. I post this blog because it seems that there are collaborative law fans, and more-or-less silence as to any potential downside to the client in the collaborative law process.
When collaborative law made inroads into Massachusetts years ago, I signed up and was trained as a collaborative lawyer and joined the council. But, as I reflected upon the underlying tenets of collaborative law, and what the process may represent for many clients, my interest waned.
The out-of-state lawyer who brought the process to me essentially explained that the process began when a divorce litigator soured on acrimonious divorce litigation. This is not an unusual phenom in and of itself. But, this lawyer, as I understand the story, did not want to stop being a divorce lawyer, and collaborative law was born.
Unlike mediation, collaborative lawyers are advocates — but only within the collaborative law process — they may engage in discovery and other litigation-like activities in pursuing their clients interests — but only within the collaborative law process.
Like mediation, and Las Vegas, what happens in collaborative law stays in collaborative law. And, your collaborative law advocates are contractually prohibited from translating into litigators if the completely voluntary collaborative law process fails to yield settlement.
And, this is where the collaborative law train left the track for me.
Having an undergraduate degree in Philosophy, I am a proponent of Occam’s Razor, which principal states that among competing hypotheses, the hypothesis with the fewest assumptions wins.
So, what is collaborative law, exactly? It is neither mediation nor litigation, but shares elements of both. It was born of litigation fatigue, and prevents the lawyers from breaking stalemates in court without requiring the clients to abandon the resources they already poured into collaboration. Thus, to me, the potential for the process to become adhesive due to resource commitment, even where the process is failing, has too much potential for causing a client to have to essentially waive judicial intervention in such important matters as child custody, alimony, asset division, etc.
As a boater, I know that certain vessels are built for certain purposes. There are motor boats and sail boats; and the old joke about motorsailers is that they do neither particularly well.
To be fair, collaborative law seems to work very well, when it works very well. But, in other circumstances it appears to be more of a benefit to lawyers who neither wish to mediate nor litigate than to the clients who wish to neither mediate nor litigate, since they may be required to do either or both, if they can afford it, if collaboration fails.
So, before you pick any particular method of dispute resolution, including mediation, arbitration, litigation, and collaboration, speak to different professionals and get different perspectives before you commit.