Why Pro Bono Collaborative Divorces … and How

Posted on Oct 1, 2013

I have always been a trial lawyer.  And I am, among other things, a family lawyer.  So, in the old days, I used to do divorces pro bono because it was an easy way for me to give back to my community.  And I believe in giving back to the community.  So that was a no-brainer.  After I a couple of years giving back in this fashion, I became dis-enamored with the concept.  Why?  Well, when your lawyer is free, and when the opposing party is representing himself because he is too poor to afford the luxury of a lawyer, that leaves YOU BOTH free to fight over every little thing, including the broken dishwasher.  Oy, vey!  So I told our local non-profit legal services organization, Bay Area Legal Services (BALS), that I only wanted them to send me bankruptcy matters going forward.  And I stopped doing marital dissolutions for free.

A couple of years ago, when Tampa Bay’s collaborative practice groups became rejuvenated (after a hiatus of 10 years or so), I thought that a pro bono collaborative divorce might be an entirely different animal. Not only would the professionals in our practice group be able to give back to the Tampa Bay community by offering our collaborative services for free for qualified low-income applicants, but, equally importantly, we would accrue practical experience.  With more experience we would be better able to sell our collaborative services to paying clients.  If we could also garner some media attention for the concept of collaborative practice (CP), then all parties would benefit.  Generally, collaborative practice does not get publicity.  Why?  Because one of CP’s trademarks (and selling points!) is its confidential nature.

Consider this: every so often, one hears of a celebrity of some kind who has sued or been sued for divorce.  The trial lawyer files the petition and the media descends like a flock of Alfred Hitchcock’s BIRDS, picking at the court pleadings for whatever salacious information they can find.  The movie star, the corporate executive, the religious icon, the heir of fortune, whoever it is, becomes the focus of media attention, right up until the moment that he or she and his or her spouse opt for a collaborative resolution to their dissolution of marriage, when one suddenly hears nothing at all anymore.  Because CP is confidential!

So I imagined that, if a required component of our provision of pro bono collaborative services was that, in exchange for our free services, the couple agrees to allow us to publicize the fact that they have resolved their differences collaboratively, that would be a good thing!

My practice group appointed me to chair the pro bono committee addressing three goals:
1)  Offering pro bono services to the community at large
2) Affording collaboratively trained professionals the opportunity to practice in a collaborative case
3) Focusing media attention on the collaborative practice process.

As you might have guessed, we immediately ran into problems.  Finding clients who qualify for free services was easy.  Luckily, we had a local agency that was already established and well known in our community doing intake and qualifying needy individuals.  So, we simply went there and solicited referrals from them.

However, I had naïvely expected that Bay Area Legal Services would send us prospective clients without hesitating.  But the first problem we ran into was the “conflict of interest” issue.  What conflict of interest issue, you ask?  BALS could not represent both the Wife and the Husband in the dissolution of their marriage.  Therefore, BALS could only refer one spouse to us; our pro bono team had to “solicit” the participation of the other spouse.  Makes sense, right?    We had to go back to BALS and explain that we could do that.

Still nothing happened.  At one point, one of our committee members, Adam Cordover, later my collaborative teammate, visited the BALS offices and performed a mini-training for some of BALS’s volunteer intake lawyers, just to ensure that they understood the theory behind the CP process.  (As time goes on, we will probably make such a training a regular aspect of our committee work, because the volunteers who do intake at BALS turn over on a regular basis.)

After several meetings with the BALS managers, during which I thought we had worked out all of the practical kinks in the referral process, we were still not receiving any pro bono referrals.   I realized that BALS had, conveniently, just begun publishing a list of “clients looking for lawyers” to the members of my local bar association.  Everything happens for a reason, right?  I decided to seek out specific cases from that list.

More problems!  Several times, when I asked BALS to refer me one of those cases, the surprise was obvious: “We didn’t think you’d want that one!”  My surprise was equal and opposite: “Why ever NOT?”  The answers were various and obvious.  “There was domestic violence.”  “The other spouse is out-of-state.”  Even “the other spouse appears to have an income that does not qualify for BALS pro bono services” was a reason.  All of these reasons were understandable, and worth discussing.  Ultimately, our pro bono committee and BALS worked through them and, hopefully, we have now reached an understanding.  But it did take a number of back-and-forths like that before we felt that BALS had a grip on the prospective client most suitable for our pro bono collaborative teams: ALMOST ANYONE!

The first case BALS referred to us was the one you’ve probably heard about: the Nelsons.  But I have to tell you that the Nelsons’ divorce was one I specifically sought out; I had to request that BALS refer them to me.  I had already put together our team; for my committee, my practice group, and the future of collaborative practice, I wanted that first pro bono collaborative dissolution of marriage in Florida to be successful.  I met with the client I had asked Bay Area Legal Services to refer to me: Pamela Nelson.  She was thoughtful about the process and we spent a great deal of time discussing how it worked generally, and how it would work in her situation.  She and Tyler, her husband, had been separated for four years but shared a now seven-year-old daughter who was shuttling between their two homes regularly.  The case was complicated by the fact that Pam had a new significant other, and another younger child.  She lived in a house with her SI’s parents and his earlier born children, as well as her later-born child, while Tyler lived by himself (and their daughter) in a two-bedroom apartment.  Both of them were very hard workers, and both of them were very committed to the best interests of their daughter.  This was their commonality.  And, as a result, this was why their collaborative agreement turned out to be as easy as it did.

But I ponder how “easy” this collaborative divorce ended up being.  I can’t help but think, after 33 years of trial work, that, if I had filed the standard petition, demanding majority time sharing, and child support, and alimony, and attorney’s fees, I would have started a war from which these parties, and their daughter, would never have recovered.  Because, as we all know, courtroom divorce is “war from the get-go.”

Both of the Nelsons agreed to our requests that they permit us 1) to publicize their collaborative divorce and 2) to include two “shadow” professionals in the collaborative meetings, to allow additional less-experienced professionals  to acquire some experience.

There were times during our Nelson team meetings that one of our clients would make a comment, and laugh, as though it were a joke, and yet our facilitator (the mental health neutral) would realize there had been a barb attached to that witticism.  We discussed how to handle those issues at our debrief meetings, and they were handled, thanks to Jennifer Mockler.

One of the best questions I am asked is why we use a neutral financial in our pro bono collaborative divorce cases.  The financial neutral brings a great deal to the table even in a low income divorce.  You might think that money is nothing to argue over in such a case, because there is none, but you would be wrong.  (Remember my client who spent hours of my time arguing over who would get the broken dishwasher?)  Your financial professional can help your pro bono clients clarify their budgets and organize their taxes.  In the Nelsons’ case, Monica Ospina counseled the clients to change who was claiming the child care credit.  Because Pamela had been taking it, but was already a head-of-household because of her later-born child, Tyler was missing out on a huge tax credit.  Even when he paid Pam what she would have saved anyway (so that she was whole), he was still saving additional money.

We have all heard the old saying … “50% of first marriages end in divorce, 60% of second marriages end in divorce, and 70% of third marriages end in divorce.”  Is this because no one learns anything in a courtroom divorce?  Is it because the divorced spouses then go on to repeat their mistakes in their new relationships?  Will these statistics change when collaborative divorce becomes a more conventional part of our landscape?  Will the problem solving techniques and decision making skills that we teach to and model for our collaborative practice clients change the way our culture as a whole terminates romantic relationships?  I believe so and that in time we will see the paradigm shift that we trial lawyers have undertaken in turning to collaborative practice reflected in our society as a whole.