Recently, another divorce attorney made a profound comment about the practice of divorce law: “So many litigations settle before trial, I consider my litigated cases to be another opportunity to collaborate. In fact, I see them as another form of collaborative.” What a revolutionary idea!
This attorney and I were on opposite sides of a very intensely litigated divorce. Like most divorce cases, it settled before trial. Both of us brought our collaborative skills to the negotiations, and we both had a collaborative attitude. Despite the hotly contested issues in the case, we were able to collaborate to the extent that the divorcing couple, the Judge and the circumstances made it possible do so. We were able to preserve more of the couple’s financial resources than would have been possible if the case had gone to trial, followed by the inevitable appeal.
When it is necessary for a divorce litigator to question the other party aggressively at a deposition and to use other litigation methods to probe for the truth, is it possible for the lawyer to do so with collaborative intent? Collaborative intent would be an overall plan to get the case settled in a way that everyone’s reasonable needs will be met. (Assume that the lawyer and his/her client are of one mind about this overall plan and strategy.) “Getting everyone’s reasonable needs met” is different from the standard intent in a litigated case, which is to “win, and if the other party (and maybe the children) is totally ruined, who cares?” So, when the lawyer is utilizing aggressive litigation tactics, if the intent and overall plan are collaborative, does that constitute a form of collaborative practice?
This “collaborative litigation,” would be to do no harm, or as little harm as possible; to be respectful to everyone, at all times, in word and deed; to keep the war out of one’s words as much as possible; to endeavor to enhance understanding by using active listening skills at every appropriate time; to reassure everyone that the door is always open for settlement discussions; and to minimize pressure and maximize voluntariness in the settlement negotiations during the litigation. To be sure, this is not the same as utilizing the Collaborative process.
Nevertheless, when it is not possible – for whatever reason – to use the Collaborative process, “collaborative litigation” can be an alternative to achieve a successful long-term settlement. This is difficult, but not impossible, if the litigating attorneys on both sides are steeped in Collaborative Practice. It sure helps if both attorneys belong to the same Collaborative Practice group and have a history of successful settlement negotiations when representing opposite sides in divorces.
© 2014 Arnold D. Cribari
