Wisconsin State Journal: Front Page Sunday Article, 2001
NON-SNARL DIVORCE NEGOTIATIONS
Wisconsin State Journal (Madison, WI)
Published on June 3, 2001
© 2001- Madison Newspapers, Inc.
Byline: Ed Treleven Courts reporter
When Pauline Tesler steps in front of a group of divorce lawyers, she poses a question: Is it worth an extra thousand dollars to your clients to be unwelcome at their daughters’ weddings?
To Tesler, a San Francisco family law attorney and UW-Madison Law School alumnus, the answer is a resounding no. But she said that’s the choice many divorce lawyers make when they decide to fight at all costs for every penny they can get from their client’s spouse. The courts and divorce attorneys, she said, can turn family relationships into long-standing bitterness. “It’s a system that’s meant to have a winner and a loser,” Madison family law attorney Diane Mader said. “What I have found is that it’s very destructive to families. It forces you to gather evidence against each other. It doesn’t force acknowledgement of the good things. And with children, it’s incredibly devastating.”
Mader is among a growing group of Wisconsin attorneys, including several who practice in Dane County, now offering an alternative. Collaborative family law offers a set of rules under which clients and their attorneys sit down together, without the intervention of the courts or any third-party mediators, to work out a fair and equitable divorce settlement. It’s a method that Tesler, co-director of the International Association of Collaborative Professionals, teaches regularly to lawyers from across the U.S.
“The goal is to find a way to make decisions that are with the best interest of everyone involved,” said Mader, who has practiced family law for 19 years and is chairwoman of Dane County’s collaborative law subchapter.
Among the basic collaborative law rules:
- Unlike mediated settlements, there is no third-party mediator. Instead, each party and their lawyers sit down together and negotiate all issues. If talks reach an impasse, each lawyer is dismissed and can never again represent either party in that case.
- There is no formal discovery. Both sides commit to making full disclosures. Even temporary custodial arrangements are agreed upon informally. Both sides hire experts, such as a property appraiser, in common. Discovery of any attempt to hide assets scuttles the collaborative case.
- There are no contested court hearings. Everything is negotiated and then taken to before a judge only when all issues are resolved.
As it stands, most divorce cases — more than 95 percent in Dane County — settle without a trial. But Mader argues that by working together, rather than against one another, more equitable settlements can be reached. Some proponents of collaborative law say it’s even less expensive than a conventional divorce.
“If we sit down and say what we need, it takes about a tenth of the time,” Mader said. “And it’s a way to empower clients to keep some control of the process.”
That’s not to say that collaborative divorces are a breeze, Mader said. They don’t eliminate the loss or sadness of ending a marriage. And collaboration is not for every divorce. Cases less suited for collaborative divorce might involve mental health issues, severe drug or alcohol abuse or domestic abuse, she said. Strong animosity between a divorcing couple also makes collaboration all but impossible, Tesler said.
Collaborative law has slowly spread among family law attorneys throughout the U.S. since its creation in Minneapolis in 1990. While northern California has become the collaborative law hotspot, it’s taken firm root in other major North American cities such as Dallas, Boston and Vancouver, Tesler said, where dozens of lawyers are trained to practice it.
Members of the Collaborative Family Law Council of Wisconsin, formed last year, began taking cases in March, said Gregg Herman, a Milwaukee attorney who leads CFLCW. About a dozen collaborative cases are currently underway in Dane County, but none have been before a judge.
“I think the process is a very solid model for family lawyers to use,” said Sandra Morgan Little, a family law attorney in Albuquerque, N.M., and past president of the American Bar Association’s Family Law Section. “It really focuses not on a snapshot in time, it focuses on how the family goes on in the future.”
But it has some critics among the legal community. Allan Koritzinsky, who practices family law for Foley and Lardner in Madison, said he’s not sure that collaborative law will catch on here. And he doesn’t believe the stereotypes that most divorce lawyers are destructive, more willing to fight than talk.
“I don’t know that it’s necessarily the typical course of conduct for good lawyers,” Koritzinsky said. “Good lawyers don’t do the kinds of things that are making this thing (collaborative law) a success.”
Koritzinsky also said he’d rather see lawyers continue with cases if collaboration fails and move them into traditional mediation.
The father of collaborative law, Minneapolis lawyer Stuart Webb, said he nearly quit law 11 years ago. Webb, who attended UW-Madison as an undergraduate, said that by the late 1980s, adversarial divorces had burned him out after about 15 years.
“It suddenly occurred to me,” Webb said, “if I was going to get out of the practice, maybe there was a way of doing it differently and allowing me to do what I like to do, not what I don’t like to do.”
Webb devised what would become the basic rules of collaborative law, and with another divorce lawyer, found clients willing to try them out. Webb said he now works from home and has never been back to a courtroom to argue a divorce case. Other attorneys have found it equally liberating. Mader said it’s just good for the profession.
“We as lawyers have an obligation to look at ourselves, to try to make sure we are serving a common good rather than doing something that’s detrimental or destructive,” she said. WSJ graphic Comparing adversarial and collabortive law