Over the past fifteen years a movement called “collaborative law” has grown quickly in the American divorce system. As many people seem to confuse collaborative law with mediation I thought it would be useful to explore the differences.
Divorce mediation began to evolve in the late 70’s as a radical reform movement in the divorce system. The premise was based on several observations. First, almost all cases, including those that had been prepared for trial, settled before trial. This meant that thousands of people paid tremendous fees and waited years for a trial that everyone in the system except the clients knew was going to settle. The second observation was that an adversary system designed for finding fault was a poor fit in the new era of no fault divorce. This led to a conclusion that cases would settle much faster and at lower emotional and financial cost if a skilled neutral facilitated negotiations directly between the couple. When the couple reached agreement a memorandum was drafted which became the template for whatever lawyer was used to draft the final agreement. This has been the model of mediation that has spread throughout the United States over thirty years. So in my practice most cases, even multi-million dollar ones, settle in about eight hours of work over a period of a few weeks at a cost typically less than two thousand dollars. Many of these cases, handled in the traditional system could easily last years and cost six figures in legal fees.
Mediation was radical because it substantially reduced the role of lawyers in the divorce. Instead of earning five, twenty or fifty thousand dollars from a case, lawyers who advised mediating clients earned a few thousand at most. Not surprising the legal profession was apoplectic about the loss of fees and attacked mediation with all the venom they could muster. It took about five years before the bar grudgingly accepted that mediation was now a permanent fixture and wasn’t going away. Having failed to abolish mediation lawyers developed several schemes to relocate themselves at the center of the process.
The most common scheme was a mediation program attached to the litigation system. At first this was limited to custody disputes which the lawyers were ok with leaving these cases to mental health professionals. So we saw many courts adapt custody mediation programs staffed by social workers and counselors to whom custody fights were mandated. If the mediator could not settle the case it came back to the judge. Mediators were not permitted to mediate any economic issues. They could help resolve custody of the kids but custody of the money was the exclusive province of lawyers.
The next step was court sponsored mediation of all issues. But here the mediator worked with the lawyers present and involved. So now the couple were paying for five professionals and even though they call it mediation it really has nothing to do with mediation because it keeps the lawyers central and just becomes another billing event in the litigation.
The next step in the evolution of lawyer-centric mediation has been collaborative law. Here the negotiation is not connected to the court system. In fact, the defining characteristic of collaborative law is the commitment that neither lawyer will go to court at all. Collaborative law is a negotiating process aimed at crafting an agreement that meets the needs as best as possible given the resources of the family. Each spouse is represented by a lawyer who takes the lead in negotiation. Disagreements musty be worked out by negotiation; there is no going to court for relief on child and economic matters. If the negotiation is unsuccessful and one or both of the couple wants to go to court, the lawyers are obligated to resign and the couple must find and retain new lawyers.
Collaborative law is clearly superior to conventional adversary divorce. It should not run up the ridiculous fees associated with conventional divorce and focuses on compromise rather than the illusion of “winning.” For people who are uncomfortable speaking for themselves it is less stressful than mediation. And it does not subject the parties to the unknowns associated with submitting one’s life to a judge who may well be a complete intellectual mediocrity who knows nothing about families or divorce.
Collaborative law does not compare well with mediation at least for the majority of couples who are capable of mediating. In mediation couples can learn a new collegial style of communication that leaves them better able to cope with the post divorce issues that inevitably arise when children are involved. Instead of learning to be dependent on a lawyer parties are encouraged to develop their own visions for their futures and to use the mediation process to design future lives. It is more difficult to accomplish this through the insulation of a lawyer representative. Self-determination is better served by mediation.
Mediation also avoids the serendipitous problems that arise when the two lawyers have incompatible styles, personalities or philosophies that can generate conflict that has nothing to do with the couple’s issues. Moreover, because negotiation is seldom taught in law school many lawyers, their claims to the contrary, are poor negotiators. I have seen many cases in which the clients have much better negotiating skills than their lawyers.
Collaborative divorce law practice is clearly superior to conventional adversary divorce. But it is a less powerful medium than mediation for couples seeking autonomy and creative outcomes.
Sam Margulies, Ph.D., J.D.
Sam Margulies, Ph.D., J.D., is one of the most experienced mediators in the United States. Since 1980, he has mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.
Author of several books on divorce, Sam Margulies is an empathetic and knowledgeable guide through the difficult journey of divorce. Residing in North Carolina but helping clients all over the world, contact Sam with your questions and to talk about your divorce.