Wisconsin Lawyer > Collaborative Divorce & Malpractice

Posted on August 28, 2013

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From Diane S. Diel, Steven A. Bach, Susan A. Hansen, and Carlton D. Stansbury:

Divorce negotiations often are conducted by attorneys locked in the traditional litigation model who are unable to relinquish their litigator’s bag of tricks acquired in years of practicing in the adversary system. The analogous process is more like the high/low bickering involved in buying a car than an honest cooperative approach to help clients reach agreements that meet the needs of both parents and their children. This win-lose approach often comes at the expense of open communication and creative problem solving and results in parties who don’t understand the agreements reached and who often feel angry at one another, their attorneys, and the legal system. This settlement approach, with the litigation bludgeon over each party’s head, also has the effect of increasing the likelihood of harmful post-judgment litigation.

The technical problems and fears raised in the main article have not been borne out in other states where collaborative practices have been thriving for many years. Collaborative contracts, like other legal forms, are evolving documents. Even now, the forms referenced in the accompanying article are being revised by the Collaborative Family Law Council of Wisconsin. Review of forms and techniques is an ongoing process in collaborative law. Constructive criticism can always be addressed in careful drafting and continuing evaluation. Despite the high incidence of ethical complaints and malpractice claims against family law attorneys, there has not been a single reported instance of such a claim in a collaborative case.

Collaborative law has experienced rapid and widespread growth throughout the United States and Canada. The American Bar Association recently published a book on collaborative law authored by Pauline Tesler, the acknowledged national expert, that is being disseminated nationwide. Texas has passed a collaborative family law statute, which has served as a springboard for the rapid acceptance and use of collaborative law in that state. In other states, the growth of collaborative law is being fostered by local and statewide organizations. In Wisconsin, collaborative law is being advanced by the Collaborative Family Law Council, which draws its membership from a variety of divorce professionals including attorneys, mental health professionals, financial specialists, and vocational advisors. The council maintains a Web site, http://www.collabdivorce.com. The Web site contains information on training, answers to frequently asked questions, how to locate a collaborative professional, and more.

Lawyers need to hear and address the public’s growing concerns regarding our profession. Particularly in family law, parties need an option in which lawyers serve as expert advisers and legal counselors and not as gladiators. Collaborative law evolved as a response to the public and professional outcry to find a less destructive method of resolving divorce issues. We have a unique opportunity in Wisconsin to follow our progressive tradition and embrace this creative, humane, and respectful process. We should not allow surmountable technical challenges to quash the hope of countless parents and lawyers for a peaceful resolution process. Rather than engaging in a counterattack on the critics of collaborative law, we suggest a symposium be convened for lawyers and other divorce professionals to address substantive concerns in a productive process. True collaboration can be used to enhance the solutions to any problems set forth in the accompanying article. It is time to proactively find solutions to problems in the divorce arena rather than to exacerbate conflicts at a personal or professional level.

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