By Alan L. Nobler, CFLS
The original article:
Hello, my name is Alan, and I am a recovering litigator.
Although I learned everything I ever needed to know in Miss Elsie’s kindergarten class, I went on to law school and began practicing law in 1969. I became a Certified Family Law Specialist in 1980. So I certainly know about taking positions and filing motions. I’ve spent years in the gutter fighting the demons of depositions and documents; support motions and discovery motions. Custody trials, too. There was something special for me about bringing home a thick file to review nights before a big motion or trial.
There was also something special about abandoning my family to spend time going through those depositions, interrogatories, documents and disclosures. I could then lay awake nights thinking of arguments to persuade a judge to accept what was by then my position and explaining my client’s entitlements. What a rush to turn on the light at 3 A.M. to make some notes so my “brilliant” thought would still be there for me with the morning alarm.
My gradual recovery started about 1995. It was a shaky beginning; I started attending Collaborative Practice (CP) meetings about every other month. But I wasn’t really committed to a change. I’d heard about CP a year or so before I actually attended a meeting and it was difficult to conceptualize the steps I’d have to take on the road to recovery.
I gradually escalated to the point where I attended a drying out session for 4 ½ day at the Friedman clinic in Marin County. But I quickly fell off the wagon again, litigating “significant” cases and feeling important.
Then I started doing some actual CP. The results were as intoxicating as the litigation; I even stayed high just as long, without the hangover. I started attending CP meetings more and more often, then attended a real 5 day drying out class in January, 1999. I even missed the NFL playoffs on TV! I began to actually visualize a life without litigation, although it still seemed like a pipe dream.
Then I found myself in a non-collaborative case that had been negotiating smoothly before the other side changed lawyers; I was sure I was going to lapse into full scale litigation. But the smoke cleared and I had a vision: I could associate an outside firm to do the litigation and I could retain the settlement negotiations. What a change in dynamic! It was difficult for the client at first, but we agreed to try the process and see how it went. The opposing litigator was uncomfortable with the concept of dealing with two completely separate firms with two completely separate functions. The surprise was the change in my client’s spouse as a result of the changed dynamic: the idea of more lawyers on the other side, one an unabashed litigator and one avoiding litigation, brought about an attitude change in him. The parties made a trip to a local mediator who was then able to resolve what could have been an incredibly lengthy and complex trial.
The experience was, in many ways, liberating. It gave me the confidence to say I can handle my life, day by day, case by case, controlling the need to litigate.
Now I can safely say I know of a CP meeting virtually every week. I’ve stayed clean and sober with no contested hearings (since April 1999) thanks to the good people in CP.
Oh, I still think back to the courthouse with its manic energy and all pervasive depression so palpable you bounce off of it at every turn. But for now, I’m keeping it under control and only attend court to pro tem.
I still find myself lapsing into positional bargaining, but those lapses seem to be more controllable and have not thrown me off the wagon. Besides, there’s always a CP meeting to attend and render aid against the demons.
Thank you for allowing me to share.
For more information, visit www.Nobler.com.
* “Hello” was first published in the ACFLS newsletter Summer, 2000. It has since been reprinted by several other publications and has generated more “buzz” than anything I have ever written.
AN UPDATE TO “HELLO” – April 2004
I retain my evangelical commitment to Collaborative Practice and mediation. This is reinforced by the people I have worked with – my collaborative counterparts (not opposing counsel) and the parties with whom we have worked. A few brief examples:
The H, making $70,000 per year who, after seeing what the schedule provided as support for W and 2 children said, “They can’t live on that!” He volunteered to pay several hundred dollars more per month. This type of reaction has happened many times and has led to the support explanation described later in this article.
The many parties who volunteer that the property requested to be confirmed as the separate property of the other spouse is indeed the other spouse’s separate property because the property originated in the other spouse’s family.
A CONTEMPORARY PROBLEM
The support schedule now creates one of the greatest conflicts we face in Collaborative Practice and mediation. I now generally approach the topic with the following:
“You have a right to see what the support schedule provides. But first, I’d like to explain what the schedule is and what it is not. The schedule first came into place in 1982. Five members of the Santa Clara County Family Law Executive Committee (Alan Nobler, George Norton, Karl Nigg, Hugh Thompson and Paul Jacobs) adopted, on a 3-2 vote, a support schedule proposed by George Norton as opposed to a competing proposal. We believed it was the slightly better division of income assets at the time. It was reduced to a multi-page chart with columns proposing support based on the number of children and income of the parties. It did not have the capacity to vary support to provide for minute differences in visitation. In fact, there was no provision for variance based on any percentage of visitation – that came later.
“The Santa Clara County judges adopted the schedule based on the following argument: ‘Adopting the schedule will provide some sense of predictability and uniformity in decisions. This will, in turn, give parties attorneys a basis on which to settle cases. Settled cases mean less backlog for the family court motions judge.’ At no time then, or now, has anybody provided empirical evidence that the schedule provides a fair way to divide a family’s income. No studies have proven anything about the schedule’s fairness or application to a particular family, whether intact or operating in two separate households..
“I / we will be happy to run numbers for you. Before we do that, would you like to see if you can work out your own division of family income? If you like, we can then use the computerized support program to demonstrate what you might have as after tax disposable income based on your proposed division.”
In the 10 or so cases in which I have had this discussion, nobody has asked to see what the schedule provides. I have “sneaked a peek” at what the schedule would have provided and have found in each case that the agreed support was higher than “schedule” based on the same assumptions. Parties have found their own ways to work out “ability to earn” issues and the timing of a review based on proposed increases in ability to earn. In one Collaborative Practice case the parties came back to have support reviewed when the H, payor, lost his job. They resolved the problem in 2 hours.
ORGANIZATIONS
I belong to two local organizations: the Collaborative Law Association (CLA) and the Association of Collaborative Law Attorneys (ACLA). I also belong to the International Association of Collaborative Professionals, the Northern California Mediation Association, and the ADR section of the Santa Clara County Bar Association.
The CLA is an open practice group that anybody with an interest in Collaborative Practice may join. We have several financial planners, C.P.A.’s and therapists in our membership. At our meetings, we discuss topics that affect our work in Collaborative Practice – the approaches we use and topics that cause concern in our practice of Collaborative Practice. The CLA is the group that does the training for attorneys and related professionals to enhance their ability to practice Collaborative Practice. There are 26 members of the CLA; 20 attorneys, 4 financial planners / accountants, and 2 mental health professionals.
The CLA hosts an open house each year where all members of the legal community are invited to socialize and broaden their exposure to Collaborative Practice and its principals. Members of the Bench are also invited and frequently attend. The open house is usually in the October time frame. (If you are interested in attending, please send me an email and I will inform you of the time and place when our publicity goes out.)
There are two membership categories, I and II. Group II members are more experienced and have more training than Group I members. Group II members must have completed a 36 hour mediation training in addition to their collaborative training. Group II members are on the list which is given out to clients for referrals. With more training a less experienced attorney can get on the reference list. Although members will accept cases with non-members who will sign the Stipulation, our experience is that such cases almost always are significantly more difficult.
BANG FOR THE BUCK – PROMOTING YOUR PRACTICE GROUP
The ACLA is comprised of members of the CLA who have joined together to promote their practice group through advertising and other efforts. Level II members of the CLA may join the ACLA with the payment of an initiation fee ($750) and agree to pay the annual fees of $250. We have a website (nocourt.org) and have advertised in the Pacific Bell Yellow Pages and Bay Area Parent magazine. We have an 800 number, 877 – 3nocourt, and a secretary who will answer and provide information packets to interested people. So far, the only promotion that seems to be having much impact is the website. No “action” was noted as a result of the magazine advertising. The Yellow Page ads have been placed in three separate area books and refer people to our website. We do not believe the Y.P. expense has been justified. We will be reducing our Y.P. advertising to a simple reference to our phone number and website in the “Collaborative Law” section. We have recently decided to revise our website to make it more consumer friendly. The comment was that the site was “written by lawyers for lawyers” so we are going to make a change.
STATISTICAL INSIGHTS
The CLA has been gathering statistics on our cases for 7 years. While we have not had the number of cases that professional statisticians require, we have enough to demonstrate trends that we feel are significant.
| Details | Collaborative Practice | Traditional (estimated) |
|---|---|---|
| Fees: | $8,756 | $15,000 |
| Time | 12 months | 18 months |
| Meetings | 5 | unknown |
| C P | $1 mil | $1.4 mil |
| Satisfaction | Very high | You all know |
Our group is in the process of compiling more statistics. We have been asked to analyze our information on our last 10 “traditional” cases. Our resident statistician, Mike Lowy, ACFLS, Anthropologist, has contributed mightily to the effort: the “traditional” column above is from his practice and he has provided much of the information in this section of my article and the organizations section. If you would like to discuss the statistics or add to them, please contact him – he is in our directory.
TRAININGS
Our CLA has member attorneys who have traveled the country to provide Collaborative Practice training to interested attorneys.
MAKING A LIVING
Aha! The $64,000 question. Can you make a living in Collaborative Practice? Well, I’m still a lawyer so I can give you a definite “maybe”. As we all know, it takes two hands to clap. So too it takes two collaborative lawyers to make a collaborative case. In Minnesota and Texas there have been statewide campaigns to educate the Bench, Bar and public about collaborative practice. Education has created a public push in those states for the process and enabled many attorneys to limit their practices to collaboration.
I have come to believe that the only way Collaborative Practice will become the default system for family dispute resolution is through education of attorneys and the courts. When the courts promote Collaborative Practice and mediation, parties will become educated and demand access to trained attorneys. I believe that most parties would prefer to resolve their dispute without going to court. Some, of course, will always want to punish the other side – either emotionally or economically or both – but experienced lawyers know those parties wind up punishing us and the court system as much as each other.
The IACP PEC is kicking off its campaign in summer or fall, 2004, as is a statewide campaign in California. We believe that when the public realizes the benefits of collaboration over “traditional” divorce, collaboration will become the standard process, not an alternative.
LITIGATION AS ADR
This article is not intended to demean all litigators and litigation. Nor do we expect all divorce lawyers to lay down their pleadings, link arms and sing kumbaya. Litigation remains an important alternative in the dispute resolution spectrum. We simply believe it should be the last alternative, not the default. Even when cases are settled during the litigation process, the toll on the participants, including the attorneys, is far greater than in mediation or Collaborative Practice.