Lessons from when CP won’t work…
What Can We Learn About Making Collaborative Law Work By Thinking About When It Won’t?
William A. Wilson, Esq.
Practitioners of collaborative law, whether lawyers, financial experts or mental health professionals, have an emotional and psychological bias toward the ideology, process and types of outcomes associated with collaborative practice.
But not every dispute, and not every party in a dispute, is appropriate for collaborative practice. This article will discuss some examples of situations where collaborative practice will not work- and in so doing, attempt to shed light on when it will.
As a preliminary matter, let’s speak of, and throw away, ideology. Most practitioners of collaborative practice are committed to it due to experience with non-collaborative processes, personal values or both. In the average training, when asked “why are you here?”, at least half of the respondents talk about watching the destruction of families (their own or their clients) through traditional family law litigation. Often those in training will say that collaboration accords with their personal values, whether broadly ethical or specifically spiritual.
But collaborative practice cannot grow and serve the community if it is limited to parties who also favor it from an ideological bias. In fact, most parties who share our bias are probably already using non-contentious means to resolve disputes, even if less formally.. Of course there is value in moving from traditional game-theory settlement negotiations to the collaborative process, but we need to be able to demonstrate that value in concrete terms.
More sophisticated practitioners will blanch at the reductionism, but, in short, I see two basic benefits to collaborative practice. The first is the decrease in cost (emotional and financial) of the process of dispute resolution. Ideally, that cost is sufficiently reduced to allow the parties to optimize their relationship after the dispute is over. What that optimization will be is another question.
The second basic benefit of collaborative practice is the possibility of creating an outcome which maximizes the benefits available to all parties. Collaborative practice does not have a monopoly on this concept: in families with a high-income party, most settlement agreements concerning financial matters include a Lester-ization of child support to bridge the gap between the bid and ask[i].
However, collaborative practitioners believe (there’s that ideology again!) that the transparency of information combined with the processes of brainstorming will lead to superior outcomes across a variety of contested issues.
But, if we are intellectually honest, we must admit that there are many situations where collaborative practice will not work. And in those cases, we should not try to force a solution or process which does not fit the problem. At the commencement of a professional relationship with a prospective client we need to do some diligence to determine whether collaborative is appropriate. We should not be “selling” collaborative (even if we want to), we should be offering it as one tool out of many. And, we should be skeptical about whether collaborative practice will work.
In order to do diligence on a client and a matter to determine whether collaborative practice might be helpful, the professional will need to inquire about facts and also assess a party’s temperament.
COLLABORATIVE ISN’T ALWAYS BEST
Here are some of the situations where a collaborative approach will not succeed:
- When the parties don’t understand or don’t want to use the process;
- When a party thinks she has more to gain (or less to lose) outside the process;
- When there is a fact known to one party (but not the other) which may have a significant impact on the outcome;
- When the benefits of the process are worth less to either party than any marginal cost of the outcome; and
- When the benefits of the outcome are worth less to either party than the marginal cost of the process.
1. Some parties simply do not understand or do not want to use the collaborative process. Those who practice in the area need to be careful of imputing to a prospective client a desire the client does not have. We also must beware our impulse to attribute to the client a capacity to understand the process which is, in fact, intellectually or emotionally impossible.
2. A party may understand the process, and may think it a good idea, but still be unsuitable because she has (or thinks she has) more to gain outside the process. As experienced practitioners know, the client may be advised by others, well-meaning or not, that some windfall awaits her. A friend or a relative may have achieved a result the client thinks ideal- and the collaborative process may well not lead to that outcome. Note that in this example we are not dealing with reality, but perception on the part of the client The collaborative process might well lead to a better outcome, but the client cannot see it, being blinded by anecdote or non-predictive experience.
3. Imagine a client with a piece of information that he wishes to withhold. If he truly understands the requirement of transparency, he will avoid the process – or enter it in bad faith. For example, Husband will become a beneficiary at age 40 in a family trust. He is now 39 and his wife has left him. Under the laws of many states he is obligated to disclose all assets, including the fact that he is a contingent beneficiary of the trust. But he may be able to avoid that disclosure depending upon the course of settlement negotiations and the language of the settlement agreement. Significantly, if his wife too is withholding information, then neither party has an incentive to be transparent.
With one or both parties in possession of material positive or negative information, the odds of a successful collaborative solution are highly diminished. This is true even if the end result of total disclosure would be better than the settlement without disclosure- because there is no way for the parties to get there.
4. While we strive to create win-win outcomes for both parties in a dispute, one or both of them may incur a marginal cost (financial or otherwise) to reach a collaborative agreement. A party may, in the end, agree to use a portion of her assets for the benefit of the children, even though such a result would not be mandated by the law. That may save the relationship with the soon-to-be ex-husband, and allow better communication. But, if that wife finds the cost of losing the assets to be greater than the value of the improved relationship, collaborative has not helped her. Similarly, an improvement in the process itself (as opposed to the outcome of the process) has a certain value. Attending a meeting of the team is usually less painful than attending a deposition. But we have to measure that value against what the client “pays” for it in terms of the eventual outcome.
5. We must also consider the converse. Does the marginal utility of the outcome outweigh the cost of the process? In a simple case, the answer will often be ‘no’. If the disputing parties have limited assets, a simple financial picture and no children, then application of statutory formulas, or even traditional divorce practice, may lead to the same outcome at lower cost. The collaborative process does cost the parties time and money, even if it works perfectly and resolves every question and salves every wound. The perfect should not be the enemy of the good.
IMPLICATIONS FOR NON-FAMILY CASES
Some practitioners would like to bring collaborative law to practice areas outside of family law. I am one of those who is interested in this advance, but think we need to be realistic about the limited scope for this movement. Many non-family disputes fall into one of the 5 examples above of where collaborative does not work.
The typical civil dispute involves 2 parties who either have a limited or no relationship outside of the matter at hand. Or, if the relationship pre-existed, the act of litigation amounts to a severing of that relationship. So, for example, a supplier and a customer quarrel over goods sold. By the time either party consults a lawyer, he has usually decided to terminate the relationship.
Non-family cases also frequently involve asymmetric information. The employer allegedly wrongfully terminates the employee. The employer knows that it has evidence of petty theft by the employee, which the employee has forgotten (or never comprehended). But the employee knows that the owner of the business uses drugs. Both parties think they have the upper hand- and are unlikely to participate in a collaborative process.
Finally, we must, sadly, return to ideology. Most non-family disputes which reach the courts involve money. Our culture equates money with success. Litigants are powered by money as a measure of their worth, whether they are in the dispute for actual cash or for psychological reasons. So most non-family matters will fail the first test above; the parties cannot understand nor accept the collaborative process.
This does not mean that there are no non-family disputes which could benefit from the collaborative process, nor that once we identify them the parties will always refuse to try it. But it does suggest that the scope for expansion of collaborative practice is limited.
[i] Lester v. Commissioner, [cite]. The United States Supreme Court, in the Lester case, blessed the common technique whereby the party paying periodic payments to the other party would deem such payments to be alimony (thus taxable to the party with a lower marginal tax rate) rather than child support (an after-tax amount to the paying party).