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FAMILY LAW: Why collaborative divorce continues to decline in popularity

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via at gherman@loebherman.com.

Few articles I’ve written have resulted in as much feedback as a June 8, 2011, piece I did on a collaborative case filings in Waukesha County.

While some readers recognized that, as I said at the end of the article, “Numbers don’t lie,” others attacked the methodology or the conclusion that collaborative cases were declining.

Now I’ve updated the study and am bracing for the impact.

My updated conclusion, now based on seven years of data, is that collaborative law is more of a training exercise for a small number of devotees who seem to do a lot of training for very few cases.

Once again, I’m using Waukesha County for this study, since it’s large enough to be meaningful, but not too large to make a study costly or overly difficult.

In my initial study in 2008, I found that 1.91 percent of divorce cases were resolved collaboratively over a three-year period. To my surprise, over the next two years, this percentage did not go up, but rather decreased to 1.36 percent of all divorce filings.

The good news for devotees of this process is that there is not much lower to go from less than 2 percent of the total cases filed. The bad news is that, while there is a huge upside potential, growth did not happen.

During the three-year period from 2010 through 2012, there were 62 collaborative divorce cases filed out of a total of 3,862 divorces. The total number of family-law cases filed was higher, but most, if not all, collaborative cases arise from divorces, so I will limit the comparison to those cases. The arithmetic reflects that 1.6 percent of divorce cases were filed as collaborative, or about the average of the prior two studies. The raw statistics are available for viewing on my office’s website.

With this many years of statistics now available and the above-stated maxim still applicable, a conclusion may be drawn: Collaborative divorce is a minuscule part of our family-law system, notwithstanding the number of trainings and meetings put on by the group.

So, why hasn’t this seemingly helpful methodology of settlement grown beyond a tiny number of cases?

One reason, for sure, is the cost of the process. Of the calls I’ve received about handling a case collaboratively, most, if not all, have been centered not on a goal of achieving a peaceful process, but on saving attorney fees. Yet, the collaborative process not only requires both sides to have lawyers, but frequently involves numerous other professionals, such a child specialist, mental-health coaches for both parties and an independent financial expert. At a time when more divorcing parties are choosing to have no lawyers at all, a collaborative case typically requires more money, not less.

In addition, derived or not, there is a general perception that the collaborative movement is not only cliquish, but exclusive. Certainly, it seems that the same individuals are recycled as officers and speakers. Worse, the perception is that the proponents are evangelistic — believing not just that collaborative is one of a number of alternatives, but that it is the best method of divorcing. That attitude is a turn-off for those who believe that practitioners need to keep an open mind and be flexible so that the strategy fits an individual case, and not the other way around.

Finally, and perhaps most importantly, the relatively few collaborative cases that have failed tend to receive more notice than the ones that succeed. Since, by design, the cost of failure is so high, there’s a reluctance for practitioners to recommend that clients take the risk.

This is not to say that I don’t believe there is a place for collaborative divorce. After all, I founded the Wisconsin Council on Collaborative Divorce and served as its first chairman. And even though I recently dropped my membership due to the above concerns, it was with regret.

Parties to a divorce should have the option of choosing a route that doesn’t go through the litigation process. But the numbers don’t lie: not many are opting to try the collaborative option.

6 comments

  1. Greg.

    I’m a big proponent of collaborative divorce. I’m former President of our Provincial group, I have recently lobbied the government for support to promote collaborative divorce, and have attended the IACP forums all over North America for the last decade or so.

    I am still a devotee of it’s potential.

    However.

    Your comments are appreciated and, I think, are taken as they are intended.

    Early on in the process, we were warned about allowing collaborative law to be motivate not out of our client’s interests, but our own, by Dr. Julie MacFarlane. I continue to do collaborative work – however, I have allowed a few files over the last couple of years to fail because in my opinion, they were not generating results beyond increasing my fees.

    I think there needs to be a serious re-think of how we control the “neverending” negotiation, how we efficiently use experts (it is still, in my opinion, much more efficient to hire a child expert at half my hourly rate to mee with the parents to facilitate a plan, than to have two untrained lawyers do the same thing half as well), and how we assure that the process is not hijacked by a party who wishes to use it, not to resolve, but to delay and prevent finalization.

    I would encourage you to re-think your involvement with your local group – I have, off and on, been a hawk among doves on the list-serv that you may be aware of – and I think the collaborative law effort requires more people like you who are wary of the process being seen as more of a religion than a dispute resolution process.

    The emperor is not necessarily naked, but there needs to be people involved in collaborative organizations like yourself who aren’t afraid to tell him when his ass is hanging out.

  2. Rob,

    Thank you for your thoughtful comments. This is exactly the type of dialogue which I would like to see occur. The process has many valuable aspects, such as the child expert and the coaches, but I’m afraid some practitioners have a deaf ear to any criticism. I’m pleased that you recognize the issues and are working to improve the process.

    Gregg

  3. I have practiced collaborative family law for 7 years but I also litigate and run a general practice. I think the collaborative model is the best process for solving family disputes but I think lawyers have to always assess whether the particular collaborative process they have adopted fits the problems addressed. I think it is important that the collaborative process, which seems to be different in every jurisdiction, be adapted to suit the needs of the clients and the issues they need resolved. If one issue is parenting then perhaps a parenting parenting expert should be retained rather than two expensive lawyers. If the issue is budgeting then a financial expert could assist at less cost with more expertise. If the “forum meets the fuss” then the fuss will be solved with more expertise and with better results. At times the best forum is court but it is a sad alternative since the underlying principle of the clients being engaged in the problem solving has been abandoned. When clients do not want to be engaged in solving the problem, or they are incapable of doing so then the collaborative process is a waste of time and energy and should be abandoned.

    I think that collaborative practitioners should invite critique and be open and ready to adapt their practice to meet the concerns that are raised. Arguably, any truthful religion will look at facts and in good conscience seek the truth and change their beliefs to fit the facts. A study of the history of religion will show that beliefs change and often the change has been initiated from open criticism and humble listeners who want to hear the truth.

    Gregg, I agree with Rob. Your opinion is very valuable and needed in order to improve the collaborative practice.

    Sid Kobewka

  4. Sid,

    Thank you for the thoughtful comments. As lawyers, we should be able to discuss differences of opinions – your comparison to the history of religion is perfect!

    Gregg

  5. For all the publicity collaborative divorce has been receiving, these numbers are shockingly low. Perhaps people need to trust each other to make the process work and divorcing couples typically show a high level of distrust.

  6. I think that collaborative law’s popularity is potentially regional as many couples are not aware of it as an option. I think that we need to get the word out and increase awareness of collaborative law being a real option for divorce in the US.

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