FAMILY COLLABORATIVE LAW: PANACEA OR PITFALL?

Only a court can grant a divorce. A court can also decide issues of custody and parenting time, alimony and child support, the distribution of property, as well as other claims incident to the dissolution of a marriage. However, a court need not decide these issues as the parties themselves have the power to resolve them–and in the vast majority of cases, they do. Often the parties are able to settle their financial and custodial issues whether with or without the assistance of counsel, during the course of an ongoing litigation process. However, in recent years there has been a growing acceptance of dispute resolution methods, whether as an alternative to conventional litigation or as a compliment with respect thereto, to assist parties to resolve their marital issues. Indeed in 2006, Court Rule 5:4-2 was amended so as to require litigants to acknowledge their having been informed of the availability of these alternative and/or complimentary dispute resolution methods, including mediation and arbitration, when they file their initial pleadings. This reflected a commitment by this state’s Supreme Court encouraging use of these alternatives. Then in 2015 R.5:4-2(h) was amended once more to expressly include specific reference to the “collaborative law” process consistent with The New Jersey Family Collaborative Law Act (N.J.S.A 2A:23D-1 through 18) enacted in 2014 as an additional alternative method to conventional litigation.

While I have written blog posts addressing topics pertaining to mediation and arbitration, I admittedly had not given much thought to this process called “Collaborative Law” until it was a topic discussed at a recent seminar I attended. Although statutorily recognized and referenced in the court rules, family collaborative law by its nature can only occur outside of the litigation process. Hence, the family collaborative law process is distinct from other dispute resolution mechanisms because the parties must expressly agree and intend to resolve their disputes without litigation. Instead, each party, represented by his or her own collaborative law attorney, meet together with the other party to the dispute, that party’s collaborative law attorney, and as needed one or more non-party participants who are not attorneys but are professionals in their fields such as certified financial planners, certified public accountants, licensed clinical social workers, psychiatrists, psychologists, licensed professional counselors and marriage and family therapists. All participants must understand and agree that the process will terminate if either party commences a court proceeding related to the subject matter to be addressed through the family collaborative process other than to seek incorporation of a settlement agreement reached into a final judgment. Participation in the family collaborative law process can only be by way of an agreement voluntarily entered into, and communications made during the process are deemed confidential and privileged from disclosure.

Proponents of the family collaborative law process tout its emotional and financial benefits as opposed to traditional court litigation. They note that traditional litigation by its very nature lends itself to an adversarial approach in which parties generally devolve into warring camps where they fight out disputed issues either amongst each other or through the courts, fueling feelings of anger, hostility and mistrust. On the other hand, proponents claim that the collaborative law process is designed to foster communication, cooperation and trust with the goal of working towards a mutually created resolution of the parties’ marital issues. While each party’s lawyer provides them advice and advocates their positions, they do so collaboratively with the goal of reaching a settlement of the matter. “Divorce Coaches” maybe enlisted to assist the parties in dealing with the emotional issues inherent in these types of cases and to foster effective communication with each other. While asserting that traditional litigation is controlled by time frames and guidelines established by court rules or the judge, its proponents claim that in collaborative law it is the parties who control the process and time needed to come to a resolution. Proponents contend that traditional litigation involves a costly and time consuming discovery process for the exchange of information while in collaborative law the parties must commit themselves to transparency and cooperation in exchanging information deemed necessary by the participants to the process. Proponents also note that the confidentiality of the collaborative law process lends itself to facilitate a more free, frank and open line of communication which not only fosters settlement, but improves relationships going forward for the benefit of the entire family post-divorce.

Given these considerations it would seem a no brainer that all family law cases should pursue a collaborative law approach versus traditional litigation. Having practiced family law for over 30 years, I believe that while the collaborative law process may be right for some cases, for most others there remain too many pitfalls for it to be the panacea it is painted out to be.

The lynchpin of the collaborative law process is the notion that both parties are committed to resolving the matter reasonably and in good faith, and with honesty and respect for each other and the process itself. It is been evident to me that a divorce case does not settle until both parties are truly ready to settle. Some cases are ready to settle early on which often can be accomplished by discussions between the parties themselves, through series of letters, phone calls and/or conferences with counsel and an exchange of baseline financial information, or even through a course of mediation. While engaging in a collaborative law process in these instances might also lead to a resolution of the matter, would doing so even have been necessary?  Unfortunately in a large number of cases, the emotions are too raw and the hurt too real for the parties to sit down with their sworn enemy at that juncture in the attempt to resolve these serious life issues. A need to win, to rake the other person over the coals, and to get or keep as much as one can are the feelings often expressed at the beginning of a case. These feelings may take weeks, months or years to abate. In some cases, they never do. Often, parties are only committed to resolving their case on the court house steps or even in the midst or trial when the reality of the situation and the possibly of a stranger deciding their life issues hits them square in the eye. Are these cases truly candidates for collaborative law? Further, during the course of a marriage, you frequently find that one party is more dominant, has greater control, or simply is more financially savvy or sophisticated than the other. These roles often exacerbate during the dissolution of a marriage and dramatically impact how a case proceeds. In regards to an exchange of information, there was no formal discovery in collaborative law. The process is dependent upon each party acting with honesty, candor and transparency and voluntarily supplying whatever information the participants to the process may request. It is dependent on the good faith of the parties. They do not do so under oath. There is no subpoena power. There is no court to obtain an order from if there is any concern over cooperation or compliance. Involving the court would actually terminate the collaborative law process. What about those sorts of issues which invariably arise during the pendency of a divorce case such as the payment of bills/expenses, parenting time or child rearing issues, etc. If the parties participating in collaborative law are unable to resolve them, the choice is to either leave them unresolved or to proceed to court to address them, and which must result in a termination of a collaborative law process. Understand that if a collaborative law process fails and thereby terminates, the attorneys involved along with any other participant professionals are absolutely barred from representing the parties or participating in any subsequent litigation. In essence, the parties will need to start from scratch, with new attorneys, new experts, etc. All the time, money and effort previously expended will be lost. Remember what transpires during collaborative law is confidential and privileged.

Don’t get me wrong. Traditional litigation may not be the optimal way family disputes should be resolved. In a perfect world spouses should not become adversaries. But more often than not this is what happens – at least at the beginning. Family collaborative law is a noble idea, one that might work in certain cases when the parties are truly ready and committed to work in good faith to resolve their issues fairly and equitably from the outset. However, for many other cases it may not appear to be a viable substitute for traditional litigation or other alternative/complimentary dispute resolution methods.