FAMILY LAW: Why collaborative divorce continues to decline in popularity

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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.