The Misconception that Collaborative Attorneys Fail to Protect Their Clients

I attended the Sixth Annual Statewide Conference for Collaborative Practice California in San Diego from April 29 - May 1, 2011. The Conference was held at a terrific venue, the speakers were amazing and I met other collaborative divorce professionals. On the last day of the Conference, I met a psychologist who was not a collaborative divorce professional, but who attended the event out of curiosity and because her closest friend is a collaborative law practitioner. During a table discussion, she commented that while Collaborative Divorce and other forms of consentual dispute resolution seem like terrific options to a litigated divorce, she refers her patients to hard core litigators because she wants to make sure that their "rights are protected." She felt that the only way for a person going through a divorce to be protected is with the assistance of a " pit bull attorney."

I was troubled by this belief because a similar comment was made by fellow collaborative law practitioners at the last meeting I attended for the Consentual Dispute Resolution Standing Committee of the State Bar-Family Law Section (Southern California), an organization that drafts and reviews proposed legislation as it pertains to Family Law. The comment made at that meeting was that mental health professionals tend to refer their patients to "pit bull attorneys."

My only explanation is that people, like the psychologist I met at the Conference, believe that only a hard core litigator can "protect their rights." In order to reach this conclusion, people are making the erroneous assumption that collaborative attorneys are somehow "weak" or "afraid to litigate" in court or otherwise "advocate" for their client. I certainly cannot speak on behalf of all collaborative attorneys. However, I know a number of very aggressive litigators who happen to also be collaborative law practitioners. Moreover, just yesterday, I had a consultation with someone who was referred to me by an attorney I litigated against several years ago and who told him that I had been a very formidable opponent. She was unable to assist him in defending against a domestic violence restraining order because she was unavailable on the date of the hearing and the client did not want a continuance on the matter.

On my website are testimonial letters from former clients that demonstrate my comfort and skill in court. In one such letter, the client states, " I would highly recommend Mark Baer to anyone in need of an attorney. Mark is extremely knowledgeable in the field of family law and knows how to deal with complex issues which can arise in a court setting. In the courtroom, Mark seems very comfortable and is well respected by his peers. Mark is very meticulous and detail oriented and completes all paperwork completely and accurately leaving little room for disputes from other attorneys.... Thanks to Mark Baer, my case turned out positive for me. I would never use another attorney and have recommended Mark to my friends at work (L.A. County Sheriff Dept.) who were in need of a family law attorney. I have received positive feedback from my friends who used Mark and they would also recommend him."

Another client I represented in a heavily litigated divorce gave me a testimonial letter in which she stated, "Amazingly, in less than a year, Mr. Baer has dramatically moved this case along and improved my position immensely. Before Mr. Baer took on this case, it seemed to be a never ending saga, causing me headaches and heartaches, not to mention, money. Obviously, Mark Baer's professional demeanor highlights his persona and character. He is not only very skillful in the way in which he practices family law, but he clearly cares about his clients.... I am convinced that my case would be one of the 'normal' divorce cases if I had seen Mark Baer at the very beginning." These are testimonials from only two of my former clients and do not show me as being "weak", "afraid to litigate", or "unskillful in court."

My experiences are not unique. In fact, in April of 2010, I was involved in a discussion on LinkedIn entitled, "Is Collaborative Divorce more cost efficient and is it providing more dignity for the divorcing couple?" Rhonda Rosenthal, a family law attorney in Chicago, stated the following: "As to Mr. Baer's comment about the difficulty of two litigation attorneys resolving the matter economically and in a dignified fashion, I would agree it is not usual, but it does happen. One of the best litigators I know is also a collab attorney. Different skills for different needs." For those interested in viewing the entire discussion, it can be found in the LinkedIn Group called, "American Divorce Lawyers."

An example of the difference in the way in which a collaboratively trained attorney and a litigator never trained in mediation might handle a situation is exemplified in the actual situations described below.

I recently handled a case wherein I learned from my client that the father owns a gun, which he leaves unloaded in an unlocked location in his home. I was also informed that he keeps the ammunition for the gun in a different unsecured location. My client informed me that she had repeatedly requested that her husband place these items in a secured location that cannot be accessed by their minor child and that he repeatedly refused to do so because he found nothing wrong with the manner in which he stored these items. I told my client that children are very good at putting puzzles together and that if their child happened to find the gun and the ammunition, that it would not be difficult for the child to figure out how to load the gun. Obviously, if that were to occur, the potential consequences could be dire and irreversible. I explained to her that unless we could get her husband to recognize the potential danger involved and to store the gun in a secured location, we needed to file a motion with the court requesting that his visitation with the child be monitored. This would result in his visitation being significantly restricted and he could not have overnight visitation.

Using my mediation training (problem solving skills), I suggested that my client try and get her husband to go to a joint session with a mental health care professional wherein they could discuss several issues, including the manner in which the gun is stored. In California, neither parents nor attorneys are mandated reporters of child abuse and neglect. However, mental health care professionals are mandated reporters of such issues. I explained that if we sought monitored visitation, it would damage the father/child relationship, which in turn would impact her relationship with both her husband and the child. Furthermore, I advised her that it was unlikely that her husband would accept monitored visitation without a fight and that it would be a very costly proposition. Also, if the report to the authorities were made by the mental health professional and not by herself or her attorney, her husband would be less likely to hold her accountable for the ultimate consequences. Moreover, the mental health care professional would likely get her husband to recognize the danger and alter his behavior, which would be the best possible result.

Rather than her incurring substantial legal fees and costs to obtain a less than optimal resolution, my client was able to get her husband to agree to go to a session with the mental health professional and the problem was resolved. My client got the best possible outcome at the lowest possible cost. Few, if any, other family law attorneys would have considered such an option. I dare say that the way in which I chose to resolve the problem protected my client, the child and her husband better than any other possible alternative. Is "problem solving" rather than "fighting" a sign of "weakness" or "inability to protect" the client?

In another recent case, the couple had a son (age 10) and a daughter (age 8). The family residence was located in a city which is reputed for having an excellent public school system. The parties agreed that the wife would have primary physical custody of the children and she wanted the family residence in the divorce. My client, the husband, was insistent that the house be sold. He told me that it was too big for his wife and their two children.

When I asked him if the children attended public or private school, he told me that they moved to that city because of the school district and that the children were in public school. I then mentioned that if he were successful in forcing the sale of the house, that it was possible that his wife would move to a different city. I then asked whether the children would attend public or private school if she moved to a city with a less well-regarded school district. He replied that he wanted the children to continue attending school in the same school district. I then suggested that he determine what it would cost his wife to rent a 3 bedroom house or apartment in that city and compare it to the after-tax cost of her continuing to live in the family residence. The reason I wanted him to look at 3 bedroom places was because of the age of the children and the fact that they were of different genders.

A couple of weeks later, my client advised me that if his wife could afford to keep the house in the divorce, she could have it. Of course, he will receive something of equal value in the divorce. I realize that I never argued over this issue with his wife's attorney or through the court system. Does the manner in which I handled this situation indicate that I am "weak", "afraid to litigate", or "unable to protect my client"? I may be biased, but I think that the manner in which I handled this situation protected my client far more than if I followed his lead and argued over whether or not the house get sold.

On May 19, 2011, I had the pleasure to become acquainted with a young attorney who insisted on taking me to lunch to learn more about Collaborative Divorce. During our conversation, she mentioned to me that before opening her own firm and focusing on divorce mediation, she worked for a law firm that specialized in handling family law matters. She explained that she became disenchanted because the owners of the firm would reprimand her anytime she settled a case "too soon." According to this attorney, "too soon" meant before the firm had an opportunity to bill enough time on the case. In fact, she told me that the clients whose matters she settled have kept in touch with her to this date because they were so pleased with the way in which she handled the matter and the ultimate resolution. After learning this, I told her about a recent discussion I had on LinkedIn, wherein another young attorney mentioned a similar experience.

She was intrigued and I took her back to my office and located that discussion. The comment was made in response to an article I had posted entitled, "Family Law in the United States -- An Uncivilized, Unenlightened and Barbaric System." Michael Apicella, a Family Law attorney and mediator in the San Francisco area said, "In my experience, it's not a "few," but a majority of family law lawyers that are motivated by their fee, rather than a client's and that client's family's best interests. I.e., the lawyer puts their financial interests ahead of their client's interests of resolving the case as time/cost efficiently as possible. Bottom line.. conflict creates revenue. I was told by two prior employers (prominent firms with lawyers that were highly regarded in the community) that I settled cases too quickly. Helping families reach compromise that benefited all but the lawyers was a not good practice, at least according to these prior employers... and many other lawyers I have witnessed over the last decade. This is one of the primary reasons I started my own practice.. so I'm not beholden to some billable hour requirement that is contrary to client's interests." For those interested in viewing the entire discussion, it can be found in the LinkedIn Group called, "California Family Law: Divorce and Child Custody Issues."

I agree that litigation is necessary on occasion. However, people are very mistaken when they believe that the only attorneys able to adequately protect them are "pit bull attorneys." Moreover, this widespread belief has contributed to the breakdown of families, negatively impacted the parties and their children, and has adversely affected society as a whole.

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