Collaborative Law in Minnesota

Occasionally people ask me about “collaborative law.”  They want to know what it is, and whether it is “better” than other alternatives.  I never answer this question directly.  I have many attorney friends who practice “collaborative law,” and I respect them and what they do.  To answer this question, I just present the questioner with a few facts and let them make up their own mind.

There is a lot of misunderstanding about collaborative law.  Much of the misunderstanding is the result of marketing hype from some collaborative lawyers who are trying to generate business for their law practice.   Some collaborative lawyers prey upon the concern of people who are getting divorced and who do not want to spend a lot of money.  Some collaborative lawyers prey upon the concern that some people have about going to court.

Marketing hype aside, a “collaborative law” divorce proceeding is not much different than any other kind of divorce proceeding.   The parties and their attorneys meet and try to settle the case.  Sometimes they bring in outside mediators or evaluators, and sometimes they do not.  They may meet once or twice or they may meet several times.  The primary difference that sets a “collaborative law” proceeding apart is that the parties and attorneys agree before hand that if they cannot settle the case, the attorneys will withdraw and the parties will retain different attorneys before going further.

I do all of these things for my clients.  I try very hard to settle cases.  I use outside mediators and evaluators.  I try to get comprehensive information about parties’ finances and other issues, and I try to bring about a reasonable settlement on behalf of my client.  However, if my client and I cannot settle the case, I do not bail out on them.  I continue to represent them, and if necessary I go to trial for my clients.

Which system is better?  It depends.  Some attorneys do not have trial experience.  They have not engaged in extensive pre-trial discovery practice, they have not taken depositions, they have not cross examined hostile witnesses, they have little knowledge of the bench, and generally they have little practical experience in the court room.  Out of fairness to his or her client, probably an attorney like that should withdraw if the going gets tough.

Collaborative law might not work well if one of the parties is a bully.  A bully can use the collaborative law process to drain the other spouse’s financial and emotional resources.  These meetings are expensive.  They take lots of attorney time to prepare for and attend, and attorney time costs money.  If, after a series of several meetings the bully decides that he or she cannot settle the case “after all,” then the money paid to the collaborative attorneys might be wasted.  The new attorney will need to charge to get up to speed on the case, and the divorce process essentially starts from scratch–except that the non-bullying party might have spent $5,000 or $10,000 needlessly on bogus settlement negotiations.  And, there is an emotional cost to investing in the collaborative process only to have it fail. 

Bullies understand all about emotional warfare.  They often have an intuitive understanding of how to use emotions to bully their spouse.  Bullying is not always about violence, per se.  It is also about threats, belittling someone, and undermining someone’s confidence and self esteem.  Often, bullies learn these lessons on the grade school playground, and they never forget them.

In my experience, settlement negotiations are more likely to be successful if there is the possibility of going to court if the negotiations break down.  Otherwise, what motivation does an opposing party have to settle the case?   Keep in mind that “going to court” does not necessarily mean having a full-blown trial.  Sometimes a judge can effectively settle an issue by making a ruling after 15 minute motion hearing.

While I usually do not threaten litigation during settlement talks, sometimes an intransigent opposing party needs to know that if a judge were asked to decide an issue, the decision might likely go against the opposing party.  That knowledge can motivate an opposing party to consider a fair settlement.  It can also motivate the attorney for the opposing party to encourage his or her client to settle.

Sometimes divorce is tough.  The reason people get divorced is because they cannot get along with each other when they are married.  Nothing magic happens to change people when they hire collaborative law attorneys.  If your spouse is argumentative and difficult to deal with during the marriage (which is why you are getting divorced, isnt’ it?) your spouse will probably be argumentative and difficult to deal with after you each have hired collaborative law attorneys.  The future tends to resemble the past.  Your spouse probably will not undergo a personality change over night. 

It might be pretty to believe that, even though you have just come through a horrible marriage, all you need to do is hire a collaborative law divorce attorney and every thing will be fine.  But reality is often different.  You need to carefully consider all of the reasonable options available to you, and you need to consider your spouse’s personality.  You need to consider the history of your marriage–how you got along, how you resolved conflicts, and, importantly, why you are getting divorced.  Then you need to decide whether you can afford to hire an attorney who will quit on you if your spouse does not agree to settle the case.

Feel free to call me at (952) 270-7700 for more information.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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