September 2, 2014

Are You ‘Settling’ with a Collaborative Divorce?

95788724In the Spring 2014 issue of Family Law Quarterly, there is an article entitled “Collaborative Divorce: The Unexpectedly Underwhelming Advance of a Promising Solution in Marriage Dissolution.” The article discusses the history of Collaborative Law and suggests some reasons why it may not be taking off as fast as it should. In the section in which the author discusses reasons for Collaborative’s putative under-performance in the marketplace, he writes, “Some attorneys fear that collaborative divorce attorneys, if focusing too much on settlement and too little on obtaining clients’ maximum individual benefit, might not adequately fulfill their professional requirement to be ‘zealous’ advocates for their clients.”

While I have no quarrel with the factual content of this sentence, I was struck by the implicit contrast between the ideas of “settlement” and “clients’ maximum individual benefit.” I have no doubt that in fact some – perhaps many – attorneys feel a tension between those two ideas, but what a shame that is. Such a contrast only makes sense if one buys into the idea that a client’s maximum individual benefit has nothing to do with – or is antithetical to – the benefit accruing to the spouse on the other side of the table. This is as short-sighted as can be. For no calculation of a client’s maximum individual benefit can be complete without a thoroughgoing exploration of the client’s likely experience in relating to his or her spouse as a former spouse. Divorce, after all, is a bit of a misnomer. “Divorce” implies the end of a relationship without acknowledging the necessary creation of a new relationship; for it is the rare couple that is able to dissolve a marriage without leaving some residue in its wake. This is especially true, of course, for couples who share children.

One of the key strengths of collaborative law is precisely that it has an expansive view of the idea of individual benefit, which allows for – in fact, necessitates – consideration of what that individual will experience in relating to a former spouse. A participant in a collaborative divorce need not give up anything to which he or she is legally entitled, but he or she should certainly be counseled in the real-world, relational (as opposed to legal) consequences of inflexibly insisting on everything to which he or she is legally entitled. In that sense, a collaborative attorney may in fact be even more “zealous” than the traditional attorney who lacks the skills or insight for such relational counseling. As I see it, far from fulfilling a professional requirement of zealotry, traditional attorneys often fail their clients by being blind to the bigger picture.

Settlement, then, is consonant with the idea of a client’s maximum individual benefit as it implies an agreement of the parties upon, ideally, their best alternative to litigation. In my view, given the pitfalls of litigation, this is not “settlement” at all, but rather the “achievement” of the parties’ best alternative, period, and the maximization of their best chances for a decent relationship after divorce. This is not to say that a settlement cannot be fraught with animosity, only that settlement is the better alternative for clients who apprehend or have been counseled to understand that divorce is often a beginning as much as it is an end. How unfortunate that a mutually acceptable alternative to litigation is termed “settling,” with all the connotations of “second best” that word carries. Instead of the full expression of an attorney’s “zealotry,” litigation is better seen as a failure of two attorneys to achieve the best outcome for their clients. Collaborative law, with its refusal to litigate, thus represents a commitment to, rather than a shying away from, a client’s maximum individual benefit.

Josh GitelsonABOUT THE AUTHOR
Josh

Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at https://www.lindawray.com/CM/AttorneyBios/JoshuaGitelson.asp.

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4 Responses to Are You ‘Settling’ with a Collaborative Divorce?

  1. Deb Clemmensen says:

    Insightful and articulate article, Josh. I couldn’t agree with you more that a respectful process focusing on resolution and settlement can uniquely set the stage for co-parenting effectively. This is the very important legacy for kids.

  2. Insightful and articulate article, Josh. I couldn’t agree more that a respectful process focusing on resolution and settlement can uniquely set the stage for effective co-parenting. This is the very important legacy for kids.

  3. Tonda Mattie says:

    Josh, thank you for this amazing explanation of Collaborative Law. It is so true! I look forward to working on a case with you. You truly understand the paradigm shift we attorneys must make to support our clients to achieve their “best divorce” on every level.

  4. Not surprisingly, Josh, given your personal history and erudition, you have absolutely nailed the critical advantage of Collaborative process that the litigation bar always seems to miss: optimized resolution; optimized co-parenting relationship. And thanks for reminding us that words are magic. As we label it, so is it internalized. And the terminology of litigation is as inappropriate as the model of litigation for those couples able to have the important conversations about what’s at stake for each of them, as well as for their families. Bravo!

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