I continue to be amazed by the growth of collaborative practice and I often wonder why it has grown so popular. Many of the professionals I have become associated with in the collaborative practice movement, including myself, could even be called collaborative practice fanatics. I offer some thoughts on why this movement has grown so rapidly and why it is here to stay.
Lawyers can be divided into transactional lawyers and dispute resolution lawyers. Transactional lawyers draft documents that govern things that happen in the future. Dispute resolution lawyers take past events that have lead to a dispute and try to help resolve it. In our society, the primary process for dispute resolution is litigation. At the heart of litigation is the belief that by presenting competing evidence to a fact-finder from two sides of a dispute, the truth will have the best chance of being found. The “truth” being sought differs from one type of dispute to another. Some disputes fit litigation and others do not. The “truth” about whether someone ran a red light is different from the “truth” about what is in the best interests of a child. The growth in collaborative practice I believe is driven by the realization that the “truth” being sought in family law matters does not match up well with the litigation process. The answer to the question of whether someone ran a red light is a “hard” fact that fits better in litigation. What is in the best interest of a child is a “soft” fact whose answer depends as much or more on the fact-finder as it does on the evidence presented.
The Pennsylvania Divorce Code, among other things, established a list of factors for determining equitable distribution and alimony. Why do we have such a list? The answer goes back to my first idea. What is an equitable distribution of property, or whether alimony is appropriate, in any given case is difficult to plug into the truth-finding litigation process. It does not fit well so we need guidelines to make it a little more predictable. We have recently seen the enactment of factors in Pennsylvania for a court to consider in custody litigation. There is ongoing debate about more rules for alimony. So, the process of more factors or guidelines continues to help family law fit better in the litigation process. Ultimately, however, many of us realize that no matter how many factors or guidelines we have, most litigants leave the family law litigation process feeling as though the factors or guidelines were misapplied in their case. So, the second idea I have is that the growth in collaborative practice is driven by the sense that no matter how much “law” we create to govern the break-up of a family, ultimately the litigation process and the law cannot resolve the many issues, not just the legal ones, that are created by the break-up of a family.
With those thoughts in mind, perhaps we should not even refer to the break-up of a family as a dispute that needs resolved. Maybe we should view marriage as a transaction that generates expectations on each side as to how married life will be and what each spouse to the marriage should contribute to that life. If the expectations change, or if the expectations of one spouse are not being met in a significant way, maybe we need to view divorce solely as a transaction that dissolves the marriage. Our job is not to help our client to resolve a dispute per se: it is to help them dissolve the original transaction in an ordered fashion with the assistance of other professionals to help them move on to their new separate lives with the least amount of legal, financial, psychological, and emotional damage. In the pursuit of the new transaction, the collaborative lawyers provide ideas to help parties identify interests and generate options, they draft the documents for the new transaction, and they make sure the new transaction is legally enforceable. The financial coach helps with the finances so that the new transaction is financially viable. The collaborative coach helps the parties communicate better in both the creation of the new transaction and its implementation. With all issues being addressed by a person with the appropriate education and experience, with the goal of minimizing damage, and with an understanding about why family law does not fit well in the litigation process, can there be any further wonder why collaborative practice has grown and will continue to grow around the world.
David A. Miller, Esquire
