Let me say at the outset that I am a huge fan of the Collaborative Method of dispute resolution, especially in the family law context where I see it most often employed. I am a firm believer in maintaining some control over the resolution of one’s case rather than to permit something as important as child custody, child support, spousal support, and the distribution of marital property to be decided, in most cases, by a hearing officer and rubber stamped by a judge.
One aspect of the Collaborative Method that I see as a potential barrier to complete dispute resolution rests on the foundational tenet of the Collaborative Method that once a dispute reaches an unresolvable impasse, the case must proceed to court with new counsel. The withdrawal of counsel after expending time and effort in a case creates undue stress on the litigants when faced with the prospect of having to engage replacement counsel not to mention the waste of attorneys’ fees incurred thus far only to have to begin anew.
I only started to think about this situation recently when a friend of mine voluntarily entered into the collaborative process in a high net worth equitable distribution case. Whenever the negotiations over distribution intensified, opposing counsel used the threat of protracted public litigation resulting from the termination of the collaborative process as a way to attempt to compel him to accede to her demands. Needless to say, the threats did not work and case was ultimately resolved privately.
But, what if the case did not resolve? I submit that at this point the use of a mediator would have been helpful the pull the parties back into the collaborative process. I understand that family law issues more than any other have a tendency to be more personal and emotional than other types of litigation. In many instances, in my experience, counsel for the respective parties have a tendency to become personally invested in their clients’ outcome as well. This entrenchment in the respective positions may impede the rational and objective handling of the case.
The role of a mediator in such a situation will serve as a “time out” permitting the parties and counsel to take a step back, take a deep breath, and look at the case more objectively. In these instances, the mediator would point out the objective strengths and weaknesses of the respective positions. In using the common sense approach, decisions based on emotion and ego will be eliminated and each party will focus on the purely objective aspects of the case, get back on track and move towards resolution. Most importantly, the parties retain control over their case.
If you are involved in a collaboration case that appears to be reaching impasse, call me to discuss how mediation may save your case before you opt out of the process and withdraw as counsel.