Sherrie,
Ah, we think largely alike.
First, as to cooperative law... having weathered the ethical storm here, I came
to the very firm opinion that cooperative law was malpractice waiting to
happen. You simply cannot push and pull at the same time. As I wrote in 2007:
"One cannot readily both protect a litigation position and also pursue the
client's interest-based needs and it seems inherently conflict ridden to
attempt to do so. If, by way of analogy, the collaborative attorney is
prohibited by the disqualification clause from building the "secret case"
against the client mentioned in the New Jersey opinion, wouldn't a cooperative
attorney be required to do so, in case the cooperative process failed?
Nothing in the intervening time has convinced me that this perspective is wrong.
I do think that there is a problem with any model of collaboration being
imposed...willy-nilly. One size never fits all. As to who should be on a
team... I am a big fan of the power of the neutral person, but I agree that
having a financial person is not always necessary. I am less inclined to do
away with coaches and sometimes I've wondered whether or not coaches could do
more of the advocacy piece and we could have a legal neutral for the legal
piece (which wouldn't be permissible under current ethical rules in Colorado,
but is still an intriguing concept to me.)
I've often also struggled with how to maintain the attorneys as the keepers of
the process, as opposed to dictators of the process. Sometimes the inherent
characteristics of the parties make collaboration really, really hard and at
what point to you say "I'm sorry, but you must have a coach or I quit." That
is a hard decision, and you don't always find it where you think you will find
it. I remember that I was surprised when one of my most difficult cases (and
it actually was one of two that have fallen out of collaboration) failed
because one of the parties, while prepared to be benign and reasonable, did not
- on a fundamental level - have the ability to share decision making. The
person was the CEO of an enormously large concern, had a monthly income that
approximated my annual income, and although they were a person of tremendous
integrity they simply could not - it was not in their nature - share decision
making. Which of course made collaboration impossible.
As a conclusion, I would like us as professionals to move divorce more to a
collaborative default, with people opting to litigate.
There are no perfect models, we are all still learning, and the range of
possibilities and permutations appears to be endless.
Just when I think I've seen it all, I find to my perpetual surprise that I have
not.
Ann
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf Of ;
Sherrie Abney
Sent: Tuesday, February 12, 2013 9:57 AM
To: CollabLaw@xxxxxxxxxxxxxxx; cppil@xxxxxxxxxxxxxxx
Subject: RE: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
Ann
You really made some valid points. I have been very fearful for a long time
that the collaborative process might end up a little like litigation wherein
the lawyers are doing what they have always done before or doing what they
think best rather than focusing on the parties and their interests, concerns,
and needs and seeking out new and creative options for each client and that
person's situation.
There are huge outcries against "cooperative law", and some of my good
collaborative lawyer friends say that no such thing as cooperative law exists.
No matter what label you put on it if the parties for whatever reason are
unable or refuse to participate in a process with a written agreement
containing a withdrawal provision then, I believe that we should attempt to
pursue settlement in any manner that is reasonable, legal, and able to keep the
parties away from the court house. Call that anything you wish. I view
resolution options as being on a continuum with litigation at one end and the
collaborative process at the other. I attempt to move everyone as far as I am
able toward the collaborative process, but I can't always get everybody to go
that far.
I also believe that we should use other professionals when the parties prefer
them or they are absolutely necessary-not because they are part of a model that
we have used in the past or that someone else says we should use.
I fear that collaborative lawyers are becoming too dependent on the other
professionals and afraid of going forward without them. I was recently
involved in a case where the other collaborative lawyer was so accustomed to
relying on a financial person, we had to hire one to explain the parties'
property division before she was comfortable enough to move on. The MHP and I
both tried to explain, but she would have none of it until a financial person
she had previously worked with talked to her. Otherwise, the case went quite
well, so that hiccup was better than going to court, but still---
I have heard collaborative lawyers say they would rather "sit back" and let the
MHP run the meetings. Certainly there have been situations where having an MHP
is very helpful and even necessary to keep peace and expedite the discussions,
but I have settled cases in both the collaborative process and litigation where
the lawyers handled everything and still achieved a good result and saved the
parties a great deal of time and expense. Employing other professionals is
wonderful when they are really necessary, but they should be employed with the
express approval of the parties and for the convenience of the parties-not the
convenience of the lawyers.
Fortunately most collaborative lawyers are making a wonderful difference in
people's lives, but I still have the little voice that tells me that we need to
beware of falling into bad habits.
Just my opinion,
Sherrie
Sherrie R. Abney
Law Offices of Sherrie R. Abney
2840 Keller Springs Road, Ste. 204
Carrollton, Texas 75006
972-417-7198 phone
972-417-9655 fax
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From: CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>
[mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf Of Ann Gushurst
Sent: Monday, February 11, 2013 2:54 PM
To: CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>;
cppil@xxxxxxxxxxxxxxx<mailto:cppil@xxxxxxxxxxxxxxx>
Subject: RE: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
cMr,
Unfortunately, it REALLY depends on the people involved - including the
participants.
I have a good friend who is not practicing in Colorado who claimed to have done
dozens and dozens of collaborative cases . Upon talking to several of the
clients, I realized that the 'collaborative' process followed sounded really a
lot like what was described below... controlled settlement negotiations between
two attorneys who were really used to working together.
I also know that in some of my own cases, we resorted to more of a settlement
negotiation when the parties fired/ refused to work with coaches. However, my
guess is that most of my clients would not describe their cases as outlined
below.
Having said that, the perspective a client has about the process can often vary
markedly from the perspective of the professionals. I am constantly reminded
of that. Just the other day, we finished a very difficult case which was NOT
collaborative, but which was settled in mediation (of a very settlement
negotiation type). The client was very unhappy with the way the final two days
wrapped up with the myriad of last minute negotiations and demands, and was
very unhappy with the opposing counsel. And while some of his complaints were
very valid, I reflected on how really, his case was fairly civil, many of the
last minute hiccups were the product of opposing counsel's inexperience and
opposing party's mean-spiritedness (after all, they were getting divorce for a
REASON) but they were MINOR.
It's all perspective right? My client was irate. Was threatening to pull the
plug. And while it was annoying, it was a good site better than a 6 month
litigation battle - but how to impart that to the client? "Look, it could have
been WAY worse and way more expensive, count your blessings. She was only
bitchy for two days...??" just kind of rings hollow, you know?
Same for collaborative divorce which, when all is said and done, is still a
divorce - painful, expensive, and full of unexpected loss.
Ann
From: CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>
[mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf Of carl Michael rossi
Sent: Monday, February 11, 2013 11:13 AM
To: CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>;
cppil@xxxxxxxxxxxxxxx<mailto:cppil@xxxxxxxxxxxxxxx>
Subject: [CollabLaw] How different from litigation? How much like mediation? Is
our message getting distorted? Is CP getting distorted?
I put this also on a LinkedIn Group....but I still prefer using the listServe
for such questions....
Came upon a very interesting chart comparing
Mediation-Collaborative-Litigation....compiled by a non-attorney mediation
service in New Jersey and Illinois. Some highlights from the CP column:
"Child Focused? - Maybe - collaborative divorce is directed by two family
attorneys who may or may not have your children's best interests in mind."
"Participation by the Parties - Medium - Collaborative divorce is controlled by
family attorneys and other professionals. You have some input in the settlement
they draft."
"Fairness - Medium - Having a family attorney fight for you might lead to a
fairer agreement. Or it might not...If you're lucky you'll have two attorneys
in the room who know each other and can at least try and work together."
"Likelihood of compliance - Moderate - The parties may have had some hand in
the settlement but since it was more likely directed by two family attorneys,
you may or may not agree with the settlement and want to comply."
Obviously this person is pushing his own services. But how far off is he? My
perception is that the more a professional considers CP as "settlement", the
more the process ends up being just what this one says about us.....that it
isn't all that different from litigation. What do you think? How do you make
sure that you are NOT just 'settling'?
InJoy!
cMr
Collaborative Practice Chicago
Divorce Without Warfare
carl Michael rossi, M.A. J.D., L.P.C.
Attorney, Mediator, Coach, Counselor
773-442-2751
cMr@xxxxxxxxxxxxx<mailto:cMr@xxxxxxxxxxxxx>
www.CPChicago.net<http://www.cpchicago.net/>
Executive Director, Collaborative Practice Professionals of
Illinois<http://cppillinois.com/>
Publisher, The World of Collaborative
Practice<http://theworldofcollaborativepractice.com/>: A Magazine Promoting
Collaborative Dispute Resolution for the Full Range of Possibilities. An
international online magazine for professionals and the general public
