SHHHH…The Secret that Non-Collaborative Lawyers Don’t Want You to Know

Keep this just between the two of us, will you? Because I’m about to tell you a secret that most non-collaborative family lawyers don’t want you to know. But, it’s a secret which you ought – in good conscience – to be told since it affects anyone and everyone who gets divorced.

What is it, you ask?

Let me answer you this way. Do you remember Stephen Covey? What about his book, The 7 Habits of Highly Effective People? It came out in 1989 and even if you’ve never heard of Mr. Covey you probably have heard of his book. Many of you may have read it. I did, years ago, and was immensely impressed by Mr. Covey’s down to earth commonsense advice, given to people just like me who wanted to learn how to live meaningful, fulfilling lives. And to be integrated – to be the same inside as outside.

I highly recommend the book to any who haven’t read it yet. It lays out seven modes of behavior – the seven habits – that permit us to reach our potential and become more effective spouses, parents, grandparents and citizens. And it’s based on what Mr. Covey calls an “abundance mentality.”

That means there’s enough happiness, success and well-being for all of us. My success won’t diminish yours. Nor your well-being mine. That’s quite different from the litigation mind-set which is based on a scarcity mentality, and which says there’s only so much money and time to go around so whatever you get diminishes me. If you win then I lose, and vice versa.

Except there really aren’t “winners” and “losers” in family law cases – parents who go to court to argue over their children never walk away from it as better, more cooperative co-parents. Never. And spouses who litigate their divorces end up reducing their estates by tens of thousands of dollars in legal fees. Don’t kid yourselves – unlike personal injury cases in which lawyers get a percentage of the damages actually recovered for a client (usually from the proceeds of an insurance policy), in family law cases the lawyers get paid from the marital estate.

Imagine an inflated beach ball. That’s your estate at the start of your case. As your case goes on and on, month after month, more and more air (money) is let out of the ball so that, by the end, your beach ball is a fraction of its original size. Divorce cases seem to produce a lot of legal activity, but my question is – to what effect, other than to run up fees?

Let’s look at how collaborative is different by turning to the second of Stephen Covey’s 7 Habits – “begin with the end in mind.” In other words, at the start of a project have a vision of how it will be at the end, then tailor your actions to “fit” your vision. Regrettably, most of us do it the opposite way – we start something with only a vague idea, or no idea at all, of what we want to accomplish. What follows may be a lot of effort but to very little effect: we are human doings not human beings.

I’ve had a lot of potential clients over the years ask me “If I hire you, will you fight for me?” To which I reply “No, you’re doing a pretty good job of that already – you need somebody to think for you.” Unfettered aggression will only increase legal fees in a divorce case. It’s not an end in itself. What is needed, but is so often lacking in litigated cases, is thoughtful planning and creative imagination.

And that’s the secret – unlike litigation, collaborative law begins with the end in mind. What end is that? A result which is negotiated by the parties themselves and which derives directly from their goals and their values.