I just received updated information from the International Academy of Collaborative Professionals Research Project. The research, independently conducted by Crescent Research, provides some interesting data. I found these statistics particularly noteworthy:

• Resolutions and Mediator Use. 90% of cases resolved through the Collaborative process. This very high success rate was achieved, even though almost none of the cases included a mediator -- a mediator was included in only 3% of cases. These two statistics reflect the successful formula of the Collaborative process, where the attorneys and other professional team members facilitate the cases. Of the ten percent that terminate the Collaborative law process without resolution, many later settled without trial; however, the research study did not track those cases.
  

• Duration. 47% of cases complete in less than 7 months and 61% in less than 9 months. 20% take longer than a year.

• Joint Sessions. In this research study, the average number of joint sessions reported was 4 per case. The average hours per meeting was 2.5.

• Difficulty of Cases. The professionals rated 40% of the cases as "difficult" or "very difficult." Collaborative law is successfully used for moderate and high conflict cases.

• Total fees. According to the research study, combined professional fees averaged $32,900 for difficult cases. 83% of clients felt the fees were reasonable or very reasonable.

• Client Satisfaction. 78% of clients were "somewhat satisfied" or "extremely satisfied." 80% would probably or definitely recommend the process to others.
  

The research was based on 793 cases reported in the last year through August 24, 2009. Most were divorce cases. Given the obstacles to reporting, this is a large number of cases. Literally every Collaborative professional I have spoken to about this survey in the last year has indicated to me that they do not report cases because the requirements to meet IACP's research criteria are simply to complex and difficult.

I would be amazed if any other divorce process yields the satisfaction rates that the Collaborative process shows in this survey. While other processes might yield similar settlement rates, a 78% satisfaction rating highlights that what makes Collaborative divorce different is not the quantity of the cases that settle, but the quality of the settlements and the process. If the value of the service is measured by satisfied clients, then Collaborative law truly stands out as providing a uniquely high value for clients.

Anecdotally, my experience is not dissimilar. The primary differences are that, in my experience, the total attorney's fees in King County tends to be higher than reported in the research, particularly among the more senior and experienced practitioners. This is likely due to regional variations in hourly rates. The total average number of joint sessions is higher in my experience than reported in the study, although that may be reflective of the complexity of the Collaborative Divorce cases that I tend to handle. I would also rate a higher percentage of my cases "difficult" or "very difficult" than reported in the research. Otherwise, this research tracks closely with what I see in my practice.

Most significantly, this research adds to the body of data on the Collaborative divorce process. It provides additional information supporting the Collaborative process as a highly successful conflict resolution process that is quite distinct in terms of the quality of the resolution that is actually achieved in a large percentage of cases.

Advantages of Disqualification in Collaborative Divorce

A Collaborative Divorce is governed by a "Participation Agreement" that sets out the contractual parts of the Collaborative process. One of the key provisions is the so-called "disqualification" provision, which disqualifies the lawyers cannot represent the clients in an adversarial proceeding. In other words, lawyers in a Collaborative Divorce may not represent their clients in court in any contested matter.

This means that new attorneys will need to be hired if the process terminates prior to final agreement. Fortunately, only a small minority of cases (statistically, about 5% of cases) don't reach final agreement. The vast majority of cases in the Collaborative Divorce process successfully settle in the process.

However, there are also many advantages of the disqualification provisions that cannot be obtained without disqualification, and which for many couples outweigh the disadvantage.

The advantages include:

Complete Alignment of Attorney Interests with Reaching Agreement - While many attorneys feel they try to help clients reach settlement, the disqualification provision assures clients that their attorney's sole focus is on reaching settlement.

Safety - Knowing that both attorneys are fully committed to helping the clients reach an agreed settlement adds a level of safety and assurance for the clients. Neither client needs to worry that the lawyer who acts nicely today will be the lawyer who will cross-examine them if the case does not settle. This additional safety allows clients to explore options in ways that are not likely possible in a process that does not have this safety built in.

More Confidentiality - Because neither attorney can go to court, there is no public forum where confidential information might be revealed. The disqualification provision therefore supports better confidentiality.

Incentive to Attorneys to Learn Non-Coercive Dispute Resolution Skills - Lawyer training in the United States is largely focused on using the court and coercive skills to try to get other parties to back down based on the strength of cases in the courts. While useful in the courts, those skills may not be as useful when seeking to reach a durable voluntary agreement. Attorneys who are willing to abide by the disqualification provision therefore have a strong incentive to learn non-coercive dispute resolution skills.

Trying Harder- When court is no longer an easy option, all simply work a bit harder to reach settlement.

These are just some of the advantages of the disqualification provision.

Suitability for Collaborative Divorce

People often ask me: "which cases might be appropriate for a Collaborative Divorce?" They are sometimes surprised when I tell them that divorces with a moderate or even significant level of conflict are often appropriate divorces for the Collaborative process. Perhaps the most essential requirement is that both spouses be committed to resolving their dispute themselves, and willing to engage with integrity in the process to accomplish an optimal outcome consistent with their values. The commitment of the parties is as paramount to the suitability of the Collaborative Divorce process as is the training and experience of the lawyers and other professionals.

But which divorces might not be appropriate for a Collaborative Divorce? There are "red flags" for which Collaborative Divorce lawyers watch.

The most obvious red flag would be those divorces where there is active coercive-type domestic violence or where equivalent coercion and control is present, and cases involving substance abuse, or where mental illness is present. Some believe those cases are never appropriate for a Collaborative Divorce. Others believe a few of those types divorce cases may be suitable for a Collaborative Divorce unless certain conditions are met, for example (a) both parties fully acknowledging and accepting the depth of the problem, (b) an appropriate treatment plan for is in effect and monitored, (c) a highly experienced Collaborative Divorce professional team is in place (lawyers, coaches, financial, child specialist, etc.), (d) an assessment as to suitability, and (e) the parties willing to have a lot of patience. Similar conditions might be appropriate for divorces involving substance abuse or mental health problems. Even when the spouses are fully committed and appropriate treatment is in place, those cases will likely be highly challenging in the Collaborative Divorce context.

Other divorces that raise concerns include those when a client wishes to enter the process for a dishonest purpose, such as to use the process to undue advantage or otherwise undermine the objectives of the Collaborative Participation Agreement. A Collaborative Divorce is unsuitable for clients who are unwilling or unable to respectfully participate in joint sessions, and those unwilling to abide by similar boundaries in-between the joint sessions. Clients engaging in the Collaborative Divorce process must also have at least a small amount of trust that the other will be participating in good faith in the process, even if there may be significant conflict.

The good news is that a Collaborative Divorce is suitable for most people. The dysfunctions that would exclude people affect only a minority of the population. If the spectrum of divorcing clients is depicted by a bell curve, with no-conflict cases on one end and highly conflicted cases on the other, then the vast majority of cases -- those that are solidly in the center of the bell curve -- are suitable for a Collaborative Divorce. For those who are suitable and who choose a Collaborative Divorce, it can be a life-changing experience for the better.

Video Interview about Collaborative Divorce

We live in an age of ever-increasing media options. At one time, video production was largely available only at great cost. Nowadays, websites on the Internet seem to be using videos as a means of disseminating information.

The Collaborative Divorce field is no exception. There are a number of good videos about Collaborative Divorce that link from the website of the IACP.

My colleague Holly Hohlbein and I have now joined this new medium of of the Internet video. We were recently interviewed about Collaborative Law by Bellevue career counselor Jan Reha, who uses these videos to educate consumers about her services and related topics. Recorded in a conference room in her office a week or so ago, it has already been posted on the Internet. This is an interesting new world.

For our first video appearance, see here:

15 Seconds of Fame

If Andy Warhol was correct that everyone will have their 15 minutes of fame, it seems that Collaborative Divorce is getting its share. Nowadays, people no longer look at me funny when I tell them I'm a Collaborative Divorce lawyer -- I am more likely to hear something like: "Oh, isn't that the friendly divorce? I heard something about that. Cool!" I never remember anyone previously telling me that my profession as a divorce lawyer was "cool." This really is different. More and more, it seems that people are learning about the many benefits of the Collaborative Divorce model.

This is no doubt due in part to the buzz of the many successful Collaborative Divorce cases. It sometimes seems that a day doesn't go by without another article somewhere about Collaborative Divorce. So it was that a friend of mine told me that she had read about one of my clients in the April issue of Seattle Woman Magazine. "Really?" I asked, as I made a mental note that I needed to look up that article. So it was that I learned that one of my cases had become part of the 15 minutes of fame of the Collaborative Divorce movement. Here is the link: Harmonic Divergence: A Win-Win Way to Divorce. It was really nice hearing about my client's wonderful experience.

More ink was spilled in April on the benefits of Collaborative Divorce in an article I wrote for the King County Bar Bulletin: Offering Families a Chance at a Better Divorce. My article was focused on helping other lawyers -- divorce lawyers and non-divorce lawyers alike -- learn about some of the significant structural advantages of the Collaborative Divorce process in helping clients divorce.

Collaborative Divorce Law as a Historical Development

In terms of legal history, divorce is a relatively new concept. Only after the gradual acceptance of marriage as a civil contract (as opposed to a religious undertaking), were divorce legal systems developed in the civil courts. Before then, marriage matters were ecclesiastical in nature.

American divorce law was not part of the common law; in England, divorce could only be granted by an Act of Parliament. It was not until 1858, long after the American Revolution, that divorce could be granted by English courts. Applying religious law or doctrine, ecclesiastical courts could only grant annulments (as if the marriage never happened) or separations that did not allow parties to remarry.

The first divorce statutes in the United States were developed beginning in 1870. No-fault divorce was not introduced in the United States until 1969 in California. Washington's no-fault divorce statute was adopted in 1973. Prior to the adoption of no-fault laws, divorces could only be granted on proof of reasons for divorce, such as adultery, cruelty, or abandonment.

The concept of fault as a ground for divorce was a key factor in placing divorce decisions in the courts. Courts were deemed well-positioned to weigh the evidence to determine if there was adequate proof of "fault" for which the divorce could be granted. Using courts for the newly-created remedy of divorce was perfect for the morals of the late 1800s.

While perhaps adequate at determining fault -- "guilt," as it were, for divorce -- courts were never designed to restructure families. Neither judges nor lawyers were generally trained in family systems, instead focusing on making standardized decisions based on the mores of the time.

Although history and society has changed, legal decisions concerning divorces with the courts, even though fault-based systems have long been abrogated. Yet, despite divorces becoming more routine, and society changing, inherent structure of the divorce court has not changed since first established, even if the laws have.

In the United States, the structure of courts is adversarial -- the theory being that both sides present their cases, and the court is to determine the truth based on those presentations. Unfortunately, the structure of the adversarial system is less than conducive to helping people through what has become a normal, routine, life transition, and makes it difficult or impossible for attorneys to act in sufficient coordination to contain conflict and thereby assist parties in providing a better resolution.

One of the responses to the structural limitations of the adversarial legal system for divorce has been the development of Collaborative Law. Collaborative Law contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the Collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work towards satisfying those interests. Collaborative Law is a formal process in which both clients are represented by attorneys who are trained in the process and its procedures to allow clients to safely move through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing the legal, parenting, and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.

Currently, there are only a handful of law schools that offer Collaborative Law as part of their curricula. For most of us, the process and techniques that are used in Collaborative Law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed in Collaborative Law practice, conventional legal training and experience does not prepare attorneys to work within the formal Collaborative Divorce process structure.

For more information about Collaborative Divorce, visit www.mark-weiss.com

Divorce in the New Year

Most divorce lawyers experience an upsurge in calls from clients after the holidays. Although the new year is just starting, it looks like 2009 will have the familiar uptick in client calls in January. For me, a number of people have called as early as November to make appointments to see me in January. It seems that many couples try to hold things together for their families for the holidays. Those who do well are able to give their family a nice holiday; others are less successful, with the knowledge that the great unknown of a divorce is looming.

What may make things more challenging this year is the economic turndown. It is not known whether the economic conditions will cause an overall increase or decrease in the divorce rate. Some couples teetering on divorce may want to "tough it out" because of their economic situation. Others may feel that the economic stress only exacerbates anxieties in their relationship. We can all hope that a silver lining of the economic downturn will be that more couples will seek out counseling before making a divorce decision, to be sure that they are truly making the best decision for themselves.

Rapidly changing asset values certainly add a wrinkle to divorce settlements. Last week, I mediated a young family's divorce settlement; the main question for them was how to best divide the debt and avoid bankruptcy. They did a good job in the mediation and made some very difficult decisions that required each to reflect on how they got to where they were. I believe we will be seeing more of those cases, especially since a large part of the economic conditions seem to have resulted from over-borrowing and an over-extension of easy credit.

In other cases, I have seen how carefully planned finances have needed to be redone based on changed conditions. For many who divorce, the most important thing is to be able to own a house or condominium. When both parties seek to own their own dwellings, all try to do more with the finite assets and income that exists. When the value of investments decrease, making an adequate down payment becomes more difficult. Tightened credit availability increases the necessity for an adequate down payment. The squeeze is easy to see. So far, there has been no bail-out on the Main Street of divorce. Yet, declining real estate values may well help these couples, although the decreases in the Seattle area have neither been as rapid nor with the dramatic swings as seen on Wall Street.

I believe that all this makes it even more important for lawyers, financial specialists, and other divorce professionals to do good work. With fewer assets with which to work, it becomes more important to try to help people efficiently and to identify the opportunities that exist. I have long believed that the role of the lawyer is to help clients by assisting with problem-solving, rather than problem-creating. To me, that includes providing information and engaging in inquiry with the client, to ensure that the client understands the impact and wisdom of his or her initial decision.

The value I try to bring top my clients is by helping and empowering them to arrive at the best solutions they can for their problems. To me, that does not mean seeking compromise from values. I view the compromise of values as an obstacle to conciliation, an enemy to resolution, and inherently disempowering. Instead, my goal is to help clients advance their highest interests by helping them truly identifying their values, needs and goals and reaching conciliation by honoring and working towards those values, needs, and goals.

On this New Year's Day, a day for new resolutions for many, it is good for me to re-commit to helping people problem-solve, make peace, and conciliate. Happy New Year.