Collaborative looks good. It presents well, and to those who do not want the battle of the adversarial system, it looks enticing. It seduces through words such as, “There is no moral future without a meaningful, public encounter with the past.” But when you come right down to it there is nothing there. That sentence, presented as an absolute, is meant to calm but it infuriates.
Go behind the word salad and you find…word salad. There is no need to dialog over the past in order to get to the future. Law is based on facts and evidence. Trying to make things more fair for a less empowered person is a worthy goal. But a dialog, when divorcing, should not be part of any process. The dialog was over, done, gone, or the marriage would have stuck. Collaborative in theory sounds good. Like a Hallmark card in action. A sweet divorce. Remain friends. Pop the bubbly and sing “This Land Is Your Land.” Lots of support people to do your thinking for you – like exporting democracy so all can be free. But it ends up just as much a quagmire as the Middle East because complex emotions and problems can’t be solved with a power imbalance in a method set up by attorneys for their benefit.
WHO IS BEHIND THE PUSH TO COLLABORATIVE?
Like any new thing, innovators and early adopters are passionate about what they create and endorse. Collaborative law advocates are no different.
Pauline Tesler is a tireless spokesperson for the joy of collaboration. She is ubiquitous – her murky and enthusiastic words are splashed over the internet in scholarly and not so scholarly articles. But talk to her dissatisfied clients and you hear about her “inner litigator” surfacing. I don’t blame Tesler for the surfacing of the inner litigator. I blame Pauline Tesler and her ilk for hucksterism, boosterism, and shameless cult like manipulation of language and facts.
NOT EVERYONE LIKES IT
Ronalda Murphy, Ph.D., Harvard School of Law, and constitutional scholar confronts head on the problems of collaborative law. According to Murphy, it demonizes law,sacrifices “just outcomes for the sake of efficiency” and ignores the problems of a powerimbalance. (“Is The Turn Toward Collaborative Law A Turn Away From Justice?”). I find that it increases power imbalances.
Even though Pauline Tesler, guru of collaborative law, traipses all over the world indoctrinating lawyers with her version of CL, the truth is: her clients don’t like her – I know because they contact me and complain.
You cannot speak rationally with an irrational mind. There are no court reporters, laws are ignored because no one is watching. No wonder the victim is revictimized in a collaborative process.
Yes, a court trail is horrendous. So is being betrayed by a legal system under the guise of kinder and gentler. I’m tired of listening to disgruntled clients who were bamboozled by the marketing shlock of Tesler and ilk. When you can use the law to protect your family and your money, why sit around with your manipulative bull shitter?
After a trial (I won) and an appeal (another win), my ex wanted to continue. He took us to collaborative. Michael Lowy, my collaborative law attorney and teacher of CL said, “We don’t have to follow the law, isn’t that great?”
No, Michael, it isn’t. Not following the law was what got us here in the first place and is why you were reported to the CA State Bar.
Jim and I eventually worked things out ourselves after the 6th Dist Court of Appeals came down hard on him. We talk, he pays what he owes (with negotiated interest – he asked to reduce and I agreed) and life goes on.
Learn the law and THEN go to a lawyer – family, civil, criminal, whatever you need. Get your ducks in order AND IF YOU WOULDN’T FOLLOW TOM CRUISE TO SCIENTOLOGY DON’T FOLLOW TESLER TO COLLABORATIVE LAW.