Promoting Informed Use and Best Practices for ADR in Washington
by Douglas P. Becker
Legislation has been proposed to establish collaborative law as an out-of-court system for divorces in Washington. Unfortunately collaborative law assumes an equality of knowledge, finances and determination that rarely exists. Its inherent problems have caused both the American Bar Association and Washington State Bar Association to reject the Uniform Collaborative Law Act (UCLA) repeatedly. The proposed Washington legislation is adapted from the UCLA. Because of the great efforts made in formulating and documenting the UCLA, its Prefatory Note is one of the best sources for definitions of the process and purpose of collaborative law, which is why it is quoted extensively below. This critique is not about implementation details of the legislation, but the nature of the collaborative system itself.
The first question is “why legislation?” It is not offering the public an alternative—lawyers are already practicing collaborative law. The regulation of legal practice is normally a judicial branch issue. The excuse of needing confidentiality or privilege for the participants is debatable and certainly a small fig leaf for a very large, complex bill. In addition, the collaborative law system bars access to the court system, except for entry of the finished product. The parties must abandon the collaborative system altogether before accessing the courts for any rulings whatsoever. Raising barriers to court access creates issues the judicial branch is best equipped to handle.
Collaborative law appears to be a solution in search of a problem. Traditional court system divorce cases frequently are resolved with minimal court involvement. How will collaborative law achieve a higher settlement rate than the 90+% settlement rate that court cases already achieve? The Prefatory Note to the UCLA states: “Like other alternative dispute resolution processes, collaborative law reduces the costs of dispute resolution for parties and emphasizes the importance of party self-determination. Collaborative law also has significant benefits to the public by saving scarce judicial resources, in promoting peaceful, durable resolution of disputes and a positive view of the civil justice system by participants and the general public.” In other words, these are not unique benefits; they exist in all dispute resolution processes.
What is unique about collaborative law is that the attorneys are required to withdraw if an agreement isn’t reached, leaving the clients to start over with new attorneys and new experts. Obviously, if that happens the cost becomes much higher than cases that begin as court system cases not just in terms of money, but also in terms of time.
The Prefatory Note takes this a step further: “collaborative lawyers emphasize that no threats of litigation should be made during a collaborative law process.” This puts the less advantaged party in a much weaker position. Court system cases have a deadline and a neutral decision-maker who applies legal standards. These limits have proved highly effective at encouraging difficult parties to be productive in negotiations. Eliminating even a hint of those limits removes any incentive to compromise.
A subtler issue is that collaborative law is a purely facilitative process that reduces the importance of legal standards. Informed consent should be the goal, but collaborative law has an inherent conflict with raising legal standards because it can make agreement harder to obtain and be construed as a threat of litigation. De-emphasis of legal standards can be rationalized as “self determination,” but that’s a hollow claim in the absence of informed consent. Without a full understanding of one’s legal rights, informed consent is impossible.
The Prefatory Note is remarkably blunt about the fact that the collaborative system is coercive in keeping the parties out of court. “The distinctive feature of collaborative law is, however, the disqualification [of attorneys] requirement…. The disqualification requirement enables each party to penalize the other party for unacceptable negotiation behavior if the party who wants to end the collaborative law process is willing to assume the costs of engaging new counsel. [E]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive.” The implications of this requirement for access to justice are very serious because there is nothing that limits the coercion to use against unacceptable negotiation behavior or even makes it effective for that purpose. Unacceptable negotiation behavior and the costs of engaging new counsel are more likely to become the “rock and hard place” trapping the less advantaged party.
That is the heart of the problem. The power to “penalize” is rarely similar on both sides. It unfairly empowers a party who has more income, information or emotional determination. Disadvantaged parties are caught in a system in which the ultimate arbiter of resolution turns out to be the opposing party.
Divorces are not arm’s-length transactions. They come with conflict, power imbalances and the anger of abandonment and broken promises. There should be a large number of divorces, perhaps the majority, that are unsuitable for the collaborative system. Collaborative lawyers should be emphasizing how many cases they reject at the outset as unsuitable, but the opposite is the case. Rejection rates appear to be very low. This leaves open the question of how many unsuitable cases reach agreement when they should not. Unfair settlements can happen easily, with the parties, children and society left to pick up the pieces. Attorneys in court cases can adjust their approach based on how much cooperation is forthcoming, but collaborative attorneys have a vested interest in presuming cooperation, equal bargaining power and good faith. Those are dubious presumptions in family law.
Another problem with the collaborative process is that binding agreements can be reached too quickly. The disadvantaged, less adversarial or more-desperate-to-leave party is at their most vulnerable at the outset when the imbalance of emotions, determination and bargaining power is at its highest. Taking the time to address those problems largely negates any time or cost benefits of the collaborative system. The extra time before court cases begin mediation can be enormously beneficial in providing the emotional distance to think independently and stop acting reflexively.
Legal standards are essential to fairness and informed consent. Society has an interest in seeing that legal standards are met, particularly where children are involved, to insure a productive and non-dependent population. All conflict resolution methods have drawbacks, but the court system has been worked on for centuries to be as fair, neutral and informed as possible. The court system is the original “alternative dispute resolution system” created to spare people from the alternatives of force or neglect. It is not inherently slower or more expensive than collaborative system; nor does prevent cooperation. In fact, the court system encourages cooperation by providing an alternative when it is not forthcoming. Courts are principled, neutral, definitive and accessible. It is in that context that negotiations are most likely to be both fruitful and fair.
Douglas P. Becker is a family law litigator and mediator. He is a past chair of the family law sections of WSBA and WSTLA. His contributions to family law were recognized by the WSBA Family Law Section’s 1992 Attorney of the Year award and a 2002 Special Achievement Award. Mr. Becker is the founder and moderator of the WSBA Family Law Section’s listerv/Web site where he publishes QuickCites, a regularly updated compendium of Washington case law on family law.