Divorce in the real world: Choose the lawyer, not the process
Guy J. Vitetta’s op-ed piece, “Resolve conflicts collaboratively” (April 30, 2013), paints a rather unrealistic view of the legal system and divorce and denigrates the role of trial lawyers who, in fact, make the system work. Because, Mr. Vitetta says, “American culture emphasizes ‘quick fixes,’ glorification of violence and a love of litigation” and trial lawyers promise that “ ‘truth’ will be revealed” in litigation, everyone loses except the trial lawyers who are “the only real winners in modern-day Family Court litigation.” I am not sure why it is necessary to disparage American culture and the hard work that trial lawyers do and the benefits which accrue to those people who need the court system to intervene and protect them.
Mr. Vitetta makes an impassioned pitch for his particular brand of alternative dispute resolution, namely “collaborative law.” He then cites the very public nature of the Latham divorce case as if it were a typical divorce case, which obviously it is not.
What really happens in family court cases? Ninety-nine percent of family law cases settle without a trial. Almost all cases settle because virtually no one wants to go to court. This includes trial lawyers who are frequently criticized not for going to trial, but for being too eager to settle. This fear of going to trial has been with us since time immemorial because a trial is obviously expensive, stressful, risky and a bad idea if it can be avoided. In 1620 Owen Felltham wrote, “To go to law is for two persons to kindle a fire, at their own cost, to warm others and singe themselves to cinders.” William Camden wrote in 1605, “Agree, for the law is costly.” The cost and stress of litigation is not something new under the sun.
Collaborative law (CL) is a relatively new concept which may or may not prove itself useful. The jury is still out. Mr. Vitetta omitted the main problem with CL, namely that a lawyer who represents a client in the collaborative law process is disqualified from representing the client in court. This is in the collaborative lawyer’s retainer agreement and this refusal to go to court, no matter the consequences to the client, is a core element and fundamental defining characteristic of the collaborative law process. These lawyers refuse to go to court. What this means in practice is that clients have spent a small fortune on experts, “coaches,” therapists and two lawyers (who refuse on principle to go to trial) and other paid professionals and then if Hard Head Husband or Greedy Wife refuses to “collaborate” and settle, the poor client gets to start all over with guess who? That terrible trial lawyer who has to then solve all the problems he or she could have probably solved in the first place through traditional negotiation or mediation.
Mr. Vitetta dismisses mediation along with trial lawyers and the “overburdened” family court system. But mediation works in most cases. Mediation is a process where two lawyers and the clients meet with a neutral person the mediator to negotiate a settlement. It is now mandatory in all family court cases. Mediation is strictly private and most cases settle in mediation, if not before.
Many legal scholars question the entire process of collaborative law. It may be good for lawyers who, like Stuart Webb, the founder of CL, are personally “burned out” on litigation, but is it really good for clients? Is a lawyer who personally detests trials and litigation and is stressed out over the prospect of trying a case really qualified to give good legal advice about whether a trial is in fact a good option perhaps the only option for a particular client?
Some clients need to go to court because their only option is to agree to an unfair settlement. Some litigants need to fear the consequences of a trial, not hide behind a closed door, behind therapists, “coaches”, and lawyers. Clients do not necessarily understand the financial and psychological disaster which awaits them if the parties do not settle in a CL proceeding. All their high-paid coaches, therapists, experts, and lawyers disappear. “A failed prediction about CL has significant financial and time consequences to the client,” wrote one professor in a scholarly law journal. One study found that the lack of judicial deadlines increased the length and expense of the CL process. “Given the significant temporal and financial consequences of the disqualification of the lawyers from going to trial, there is clearly a heightened risk of coerced settlement.” One commentator calls the process, “Entrapment that prevents clients from withdrawing from the process.” Indeed one party can effectively fire the other party’s lawyer, by simply not settling.
Collaborative law is a perfectly good process if it works. Clearly some people like it. But it can mean disaster for a litigant whose case needed to go to court.
In the end, clients have to trust in the ability and integrity of the individual lawyer, which is why the critical decision for every client is who to select as his or her attorney, not the process of resolving the dispute.
Robert N. Rosen is a trial lawyer who practices family law. He is a member of the American Academy of Matrimonial Lawyers.