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FAMILY LAW: Why are there fewer collaborative divorce filings?

Gregg Herman

Gregg Herman

A few years ago, it appeared that collaborative divorce, and its cousin, cooperative divorce, would be the “new thing,” revolutionizing the practice of divorce in Wisconsin.

In my column a couple of years ago, I reported a study reflecting that while collaborative divorce only represented a small number of filed divorce cases, it appeared to be gaining in popularity and had a reasonably favorable success rate. See Gregg Herman, “Collaborative Divorce Gains Momentum in Wisconsin,” Wisconsin Law Journal, Nov. 24, 2008.

It recently felt like time to update the study – which resulted in some very different conclusions.

My office examined two additional years of divorce filings in Waukesha County. We chose Waukesha because it has a sufficient number of divorce filings and collaborative lawyers to make the study meaningful, while not being so large as to make an examination of all divorce filings unmanageable. The raw data we relied upon is posted on my office website.

First, for comparison purposes, our 2008 study revealed that over a three-year period, of 3,927 divorce cases filed in Waukesha County, 75, or less than 2 percent, were collaborative cases. Of these 75 cases, eight, or 11 percent, resulted in a breakdown of the collaborative process where the parties had to retain new lawyers. The remainder either resulted in a settlement within the collaborative process or a dismissal, presumably due to reconciliation.

Our updated study examined 2,579 divorce cases filed over a two-year period. Of those cases, 35, or less than 1.4 percent, were collaborative cases (we excluded one case with a “collaborative agreement” because one party was pro se, which means the case could not have involved a disqualification agreement). Of these, one is still open at the time of this writing (which is a year and a half from filing — not a good sign). Five cases were dismissed. Of the 29 cases that went to judgment, 24 settled within the collaborative framework. In five cases, or 17.24 percent of the cases that went to judgment, the collaborative process failed.

Two aspects of the data are disturbing, for those who believe in the collaborative process.

First, the number of collaborative cases is declining, from an average of 25 cases per year to an average of 17.5 cases per year. Second, the failure rate is way up, from 11 to 17.5 percent, an increase of 55 percent.

Disqualification is both the key to the collaborative process (which is why when one party is pro se, it is not a collaborative case) and its greatest risk. If the collaborative process fails, the cost to the parties of finding and retaining new attorneys is significant. As a result, the disqualification agreement is designed to encourage the parties to reach an agreement within the collaborative process.

Why are there fewer collaborative divorce filings?

Certainly, collaborative divorce was never intended to be for everyone. Rather, it works well only for certain parties. When giving a presentation once on settlement techniques, I said that collaborative divorce may not work in cases where one party is trying to hide assets, there is mental illness or allegations of domestic violence or alcohol or substance abuse. A judge in the audience interjected: “You have just described every case in my court!”

The statistics showing the decreasing percentage of cases that elect the collaborative route and the increasingly high failure rate may be related. After all, the failure of a collaborative case hurts not just the client, but the lawyers as well, who lose the client and the future fees and referrals generated by satisfied clients. The maxim “once burned, twice shy” might be applicable here, and attorneys may be increasingly reluctant to sign the disqualification agreement.

There are numerous other potential explanations, including a blip in the timing of this study, a failure to adequately train collaborative lawyers and, perhaps, the limited utility of this methodology under any circumstances. Possibly the weakened economy of the past few years has played a role as well, with fewer divorcing couples overall being able to afford legal counsel, either traditional or collaborative; we didn’t pursue that angle in our limited study and it could be a subject for a whole different article. But arguably, the weakened economy – one might think – would lead to more collaborative cases, as it can save the parties money, when there is less money for litigation and less to litigate about.

Anecdotally, I can say over the past few years, I’ve had fewer clients elect the collaborative process. It’s troubling to me, since I still believe the process works very effectively in appropriate cases, and I was the founder of the collaborative group in Wisconsin.

In any event, numbers don’t lie and the collaborative movement — and those who care about the process — should take heed.

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  1. Gretchen M. Walther

    I find this article very strange and inconsistent with collaborative practice in New Mexico. We have seen an increase in collaborative practice here. The client’s like it because it is more efficient and often less expensive than litigation. Many divorcing parties have expressed to me that in this hard economic climate, they very much appreciate having an affordable and efficient option. Apparently they are telling other divorcing parties this because myself and other divorce lawyers who practice collaborative are getting an increased number of calls for efficient divorces.

    Gretchen M. Walther

  2. I would add that people who don’t like each other are not interested in collaborating on anything.

  3. If the sum and substance of Gregg Herman’s recent article in the Wisconsin Law Journal on the current state of the Collaborative Divorce Process is “numbers don’t lie,” then I guess I’m not too worried. The thing about numbers is that they have a way of being twisted and misinterpreted by those who wish to use them to suit their purpose. The Collaborative Process requires a commitment by its team members, both the divorcing couple and the low-conflict attorneys who agree to represent them, not to litigate the disputed issues in court. No matter how high tensions run – and in many cases emotions run quite high – everyone is committed to resolving all issues at the table, trying to act like dignified grown ups as much of the time as possible. Some lawyers don’t like the Collaborative Process because it means they risk losing a client (and the billable hours that go with them) if the process breaks down, for whatever reason. But sometimes there are good reasons for a particular case to break down, that are neither a reflection of the process nor a dire warning for all things Collaborative in the future.

    Some parties enter into Collaborative knowing their journey will be difficult, but aspiring to a better choice. When their Collaborative process terminates, it may simply be because parties wanted to try the low-conflict process, but couldn’t overcome their emotional impasse despite best efforts. Often the team knows this going in, and has accommodated the clients’ wishes to “try” the more dignified route, knowing litigation will be uglier and take more time. The fact that a case ended up in litigation is not necessarily a reflection of a failed process, but could have been deference to the parties’ desire to aim higher than their run of the mill level of conflict. Many cases like this are successful, and high conflict parties often resolve their issues in the Collaborative Process. Some couples are not able to overcome their disputes, and move on to litigation. Just as some litigation cases settle, some move on to trial.

    Client interest in the Collaborative Process has certainly ebbed and flowed in the past few years, but more as a reflection of the team cost than the guidelines of the process or the disqualification agreement which is its core principle. While the process may be more economical for high conflict couples who would otherwise break their bank in messy litigation, it has not been as appealing to many amiable couples, who are already cooperating to resolve their disputes, and do not feel the need to engage a team of professionals for further assistance. I have certainly noticed fewer middle income Collaborative cases in my practice in the recent past, but the number of high income cases has remained consistent over time. I am sure the economic downturn of the past few years has played a role in this phenomenon, and I certainly expect numbers to grow once the economy changes for the better. Most people who truly understand the value of the team, and the value of the disqualification agreement, commit wholeheartedly to the process and its costs. It is simply a matter of affordability at the moment. Considering the current state of the economy, and the fact that pro se cases for family law are reportedly up to 70%, it is small wonder that Collaborative filings are down.

    What is up, however, is the number of practitioners who have joined the ranks of becoming Collaborative Professionals. The Collaborative Family Law Council of Wisconsin has record membership levels since its formal inception in 2000. The International Academy of Collaborative Professionals has record membership levels since its formal inception in 1999, including over 4000 members from 24 countries. The number of phone calls my office receives asking about the Collaborative Process (without my having to educate the client about what it is in the first place), is up. Not everyone chooses the process, just as not everyone chooses me as his/her lawyer. It has to feel like a good fit for both parties, and when both parties don’t want the divorce, agreeing on a process can be quite challenging.

    But there is one thing I’m certain of: when two people must go through a sad and angry time such as divorce, I would much rather they get the assistance they need from the professionals they need (financial, legal, mental health, child specialist), and make their own decisions about their kids and their money, rather than leaving those decisions to a stranger (the judge/GAL). Sometimes it takes a little time to get them to a good place emotionally in order to make those decisions, hence the longer cases on the docket. But that is one of the reasons Collaborative is better than litigation in the first place: the parties get to go at their own pace, and not be rushed through the docket at the whim of the court. They chose to divorce, they chose their process, and they chose their outcome. The one question we ask ourselves as Collaborative practitioners is, would litigation really have been “better” for this family? I have never yet answered that question “yes.”

  4. Hermann acknowledges the potential shortcomings of the study they performed, and I agree that this is a pretty narrow data set, but that doesn’t mean it’s useless. Collaborative divorce is a great option, but there are so many variables in each divorce case that might prevent a collaborative divorce from working out. I’m always a proponent of prenuptial agreements, but because of a stigma surrounding them, they’re often avoided. There are plenty of options lawyers should be aware of, and being aware of trends, upward or downward, is savvy business.

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