Most of the information provided about the collaborative process explains why collaborative law is beneficial or the right choice for the parties going through a divorce (or other family law matter). I want to discuss why I, a lawyer who practices collaborative law, am an advocate for the process.
In most articles or testimonials about collaborative law, it is pointed out that one of the biggest benefits of the collaborative process is that it is less expensive than litigation. That is true. So, why then do lawyers, dependent on billable hours for their income, support a process in which they bill less and even turn some of the time they would typically bill over to the financial and mental health neutrals who participate in the process? To answer this, one needs to understand how we – the lawyers – got here.
A quick look at the lawyers who are members of Collaborative Divorce Austin and other collaborative law practice groups reveals that the vast majority of them have considerable trial experience and many are board certified in Family Law. To become board certified by the Texas Board of Legal Specialization, a lawyer must have extensive litigation experience in contested matters. Therefore, the lawyers who support collaborative law, those lawyers who are telling you that the collaborative process is better than litigating, are litigators–and usually successful ones. Obviously, the collaborative process generates legal fees, but, honestly, not as much as a litigated case. So why give up a lucrative litigation practice to collaborate?
Simple. Practicing law, and especially family law, is not all about the money. Like any job or profession, job satisfaction is important. Those of us who have been through divorces or custody disputes with hundreds, maybe thousands of clients, over the years know how difficult, all-consuming, and often agonizing the process can be. We have always looked for ways to make it easier on our clients. We have been the lawyers who are the first to suggest informal discovery, cooperation, sharing of expert expenses and mediation. We lawyers, who have been trained to litigate have strived to help our clients avoid litigation. Why? Because we have litigated–many, many times. We know firsthand the uncertainty and expense that goes along with litigation. We know that what goes on in a courtroom will not serve as a foundation for a cooperative future for the parties involved. Finally, we know how difficult it is to work so hard for so long and turn over the final result –indeed, our client’s futures–to someone else–the judge.
Lawyers are not therapists or counselors, but we want the best for our clients. We try to advise clients to make decisions that benefit their children and their families, even decisions that our client might not see as having an immediate personal benefit. Collaboration is better suited to giving that advice. In the collaborative process, we can stop the jockeying for position, the constant need to push our one position or “agenda” (which within the process often changes dramatically) and focus on taking the client and his or her family through to the other side. It is so much better, after weeks or months of hard work, to actually know the outcome, rather than sit and wait for the judge to tell us what it is.
It has been my experience that even if the client is pleased with the trial court’s decision after a trail, he or she is rarely pleased to have gone through a trial. However, in a collaborative case, a client may have had initial doubts about or may have been impatient with the process, but, invariably, he or she will tell me they were glad they went through it. There is the distinction- a client can see the benefit of the process even if the final agreement is not exactly what he or she really wanted.
Lawyers want satisfied clients. Of course, we want good outcomes for the families involved, but (back to our financial interest), happy clients also mean referrals and referrals mean new (hopefully collaborative) business. So, the economic outlook for the lawyer is not at all bad.
And in the final analysis, it is pretty simple, the collaborative process benefits lawyers much in the same way it benefits the parties. It is less stressful, and more creative, it puts the process and the outcome of the case where it should be- in the hands of the clients and the collaborative team supporting them. We enjoy the process more- the brainstorming, the sharing of ideas, the advocating for our client in an atmosphere where what everyone has to say is important. Even during the times when things need to be said that are uncomfortable or when emotions get the best of one or both of the parties, there is the knowledge that there is support of the team and a solution at hand.
I am sometimes uneasy at the end of a divorce case when I shake the client’s hand or accept that grateful hug and feel “good luck” is the best I can say. I have achieved a good result for them, but then they are “one their own.” On the other hand, it is always rewarding to end a collaborative case knowing that the team, the lawyers, the financial expert and the facilitator, have given the parties and their family tools and a plan to go forward–usually with a more cooperative relationship in their future.
In the end, I suppose one reason I advocate for collaborative law is pretty selfish. Practicing collaboratively, I sleep better at night… and, that’s a good thing.