Huffpost Divorce
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Mark Baer Headshot

The Consequence of Unenforced Ethical Guidelines for Collaborative Divorce

Posted: Updated:

The Ethical Guidelines for Collaborative Divorce by Collaborative Divorce Institute provide in pertinent part as follows: "All Collaborative Divorce team members have been trained in Collaborative Practice and adhere to the Code of Ethics of their respective disciplines....

• If a team member becomes aware that either Client is withholding information necessary to the team process or is purposefully giving fraudulent information, the team member shall remind the Client of his/her agreement to openly provide all information necessary to the process.
• If the Client continues to withhold or give false information, the team member shall withdraw from the process...."

For those of you who are unfamiliar with collaborative divorce, it is "an interdisciplinary team approach to family law. It is based upon specialization of labor, not duplication. In addition to the parties themselves, the team consists of attorneys, mental health, and financial professionals. The attorneys use logic, reasoning, knowledge of the law, and identification of their client's interests to assist clients in reaching a negotiated settlement. The coaches (licensed mental health professionals) use their training for any and all of the following purposes:
(1) to help reduce the clients' stress levels;
(2) to improve their coping mechanisms;
(3) to improve the way in which they communicate with each other;
(4) to restore or at least improve their cognitive understanding and reasoning capabilities;
(5) to assist in creating an effective parenting plan; and
(6) to assist in restructuring the family.

The child specialist (a licensed mental health professional) is the advocate for the interests of the children. The financial neutral (either a CPA or a CFP [Certified Financial Planner]) assists the clients in dividing their assets to best meet their needs and those of their family in general and planning for the financing of two households. All professional team members are co-equals and work together with the clients in a collaborative fashion to assist them in reaching a mutually satisfying settlement that best suits their particular family. It should be noted that there is only one team. It is not husband's team against wife's team. "

Allow me now to share with you what occurred to me on a full-team collaborative divorce case, wherein I was the least seasoned collaborative professional involved. In fact, several of the professionals involved are trainers or shadow trainers in both mediation and collaborative divorce, including the other attorney involved. I would like to point out that I originated this case and that my client had never even heard of collaborative divorce until she learned about it while consulting with me. It should also be noted that I am very rigid when it comes to parties to a collaborative process sticking to a list given to them of appropriate collaborative team members. Unfortunately, the other spouse went off list when they retained their collaborative attorney and my client went off list when they retained their divorce coach.

The story I am going to share with you is only one of many that occurred in this exact same case and may describe the others in future articles. The Collaborative Case officially commences upon the execution of the Collaborative Commitment Agreement ("CCA"), which occurs at the CCA meeting that is attended by both spouses and all professional team members. The legal issues involved in that case included a parenting plan, child support, allocation of the professional fees and costs, and possibly spousal support and division of property. The reason I say possibly spousal support and division of property is that there may have been a fully executed premarital agreement involved and the validity of that agreement, if any, was in question. In any event, issues pertaining to child support and spousal support were expressed by my client at the CCA meeting and was an ongoing concern of theirs from the very beginning and my client apparently earned approximately two-thirds as much as their spouse.

In order to address these issues, the clients were directed to prepare Income and Expense Declarations with the requisite attachments and provide the attorneys with a copy of the fully executed premarital agreement, if any. In fact, the attorney for the client wanting to enforce the premarital agreement sent the following email approximately one month after the CCA meeting: "First, I do not have any copy (signed or unsigned) of the prenup. I have made several requests, but I still don't have it. Second, based on my understanding of how this document came to be and the big question as to whether one was actually ever signed by both parties...." Unfortunately, it was my understanding that the other spouse was the only person with a fully executed copy of the agreement, if such a copy even existed. About that same time, the financial neutral notified us that both spouses wanted to know the outcome, but are "dragging their feet" on providing the data. She also advised us that "they want to know the outcome especially of the Pre-Nup before we have the data. This case is so emotional about the finances that I'm still at a standstill until [the client represented by the other attorney] decides to release [their] documents to me." The attorney for that client responded in pertinent part as follows: "Thank you for the update. I have been echoing the same to [my client]. It really is up to them to move this case forward, not us.... If they want to complete the process, they need to get you the documents and information...."

After no progress was made over the following two weeks, I expressed frustration and possible harm to my client as a result of the fact that the other client "is not turning over financial documents that are necessary for [the financial neutral] to perform her role in this case, but" that my client had done so. I then proposed what I referred to as a "stopgap" solution in order to prevent my client from being harmed by her spouse's non-compliance. Sadly, the other attorney perceived my suggestion as a demand and kept insisting on full-team telephonic conferences in order to address problems caused by her own client's refusal to turn over any of the necessary information. Moreover, my own client's coach called to tell me that my request was "positional and uncollaborative." I want to remind you that neither of these "collaborative" professionals was included on the list provided to my client. As you might imagine, I had a very upset client who also happened to owe me money. At the same time, I was spending a great deal of time because of these issues that were caused by the other client and their attorney.

About a month later, the other client finally turned the financial documents over to the financial neutral. However, by that point, my client owed me over $4,000.00 in unpaid fees and the case had been placed on hold unless and until those had been paid. Since my client was not paying any of those fees because they were incurred as a result of her spouse's actions or inactions, I finally decided to withdraw from the case a month and a half later.

After I withdrew and expressed my frustration with the fact that the other attorney had not complied with her ethical obligations by not withdrawing from the process after months of her client withholding information necessary for the team process, she said, "I do not appreciate the splitting that is going on here. Please do not use my words and assume that the agreement was what you were demanding. It was not." How about the fact that she violated the "Ethical Guidelines for Collaborative Divorce" by not withdrawing from the process long ago? How about the fact that I would not have had an outstanding balance that my client wouldn't pay, had she complied with her ethical obligation and withdrew? I was then reprimanded for blaming other team members for my outstanding balance. Let me ask this, would I have had the balance or a client who didn't want to pay a balance incurred because of the other spouse's lack of cooperation, if the other attorney had complied with her ethical obligation and withdrawn?

Interestingly enough, after I withdrew, the remaining members of the collaborative team actually suggested that they see if my former client would be willing to continue in the collaborative process with a different collaborative attorney - one to whom she owed no money. They actually proposed this at the end of a debriefing conference call we had. In other words, it was somehow "collaborative" for me to be stiffed by my client while they continue generating income from a case that I initiated. As an aside, when I recently learned that a member of that "collaborative" team was presenting to the members of one of my collaborative practice groups, I posted on the social media that the collaborative community might benefit by concerning itself with the character of some of its trainers. I was told that my comment troubled the members of the collaborative practice group that ultimately declined to admit me as a member. By the way, before I withdrew from that case, that particular "collaborative" professional had told me that I should not concern myself with whether or not I would be paid for my work because I would learn a great deal from the more seasoned collaborative professionals involved on the case.

In his book titled "Power through Collaboration - The Formula for Success in Challenging Situations," Stephen Willis, Ph.D. sets forth what he refers to as "common misconceptions about collaboration." The following "misconceptions" applied to the case I just described:

"The disparity between self-professed and actual behavior can have serious consequences. In critical situations a lack of real collaboration can put people on a collision course with disaster. Yet all the while those same people can mistakenly albeit sincerely hold themselves out as collaborating.... With great sincerity, people can believe their actions are collaborative despite those with whom they are supposedly collaborating feeling exactly the opposite!
...
Mistaking the mere act of working together on a task for collaboration can lead to the erroneous conclusion that collaboration is ineffective. The reality is the act of not collaborating is what is ineffective. Ironically, collaboration is often deemed ineffective when the real problem is a lack of collaboration.
...
Often working together on a task is not needed and is counterproductive. Working alone sometimes can be faster, cheaper, or produce the best results, and can still be a part of collaborating.
...
People can have much to gain by working together, but may still work against, sabotage, and outright fight with each other.... Collaboration can occur even when goals being worked on are not shared or of direct mutual benefit.
...
Collaboration is first and foremost about people. A manager at a Fortune 100 company well known for its use of collaboration tools and processes described it to me this way: ... 'The real issue comes down to how motivated are the participants to SHARE information with each other - to want to give as much as they get from each other. That is the key to it. Sometimes the tools help - sometimes they can interfere.'
...
Collaboration Does Not Mean the Absence of Differences, Disagreements, or Conflict. Collaboration often fosters, greater cohesion and harmony, but that does not mean having to be polite, nice, and agreeable to everyone all the time. The absence of conflict is neither required for nor indicative of collaboration, and can sometimes indicate the opposite. Collaboration is about getting results, not kumbaya.... A facade of harmony that prevents crucial issues from being addressed can be detrimental. As Edwin Land, the co-founder of the Polaroid Corporation stated, 'Politeness is the poison of collaboration.' Yet politeness is a common substitute when genuine collaboration is lacking or difficult to obtain.
...
Collaboration Does Not Require Being Leaderless and Egalitarian.... Organizational structure can discourage troublesome behaviors and promote effective cooperation only to the extent that people's personality types and motivations allow. The particular types and motivations involved trump and readily over-ride structure and process.
...
Collaboration is not synonymous with giving up power and being weak and defenseless. It is not just being agreeable or obsequious. It is not about always accommodating, conceding, rolling over, and giving in and going along. It is not about obedience to the preferences or dictates of a group or larger community. Indeed such behavior is more typical of enslavement or of cooperative behavior coerced by force or economic necessity. Disempowered individuals are not capable of working willingly and freely. Consequently, they are much less effective as potential collaborators. Collaboration withers away whenever people are not empowered."

I should point out that my experience was by no means an isolated incident because the © Collaborative Divorce Institute subsequently developed "Streamlined Protocols Training for Collaborative Divorce." Among other things, those Protocols provide that the following is to be completed before the CCA meeting: (1) "Gather all financial information that you think will be needed; and (2) gather all legal information as requested by your Collaborative Lawyer." Nevertheless, I am going to once again ask the following question: "You can call a process 'Collaborative Divorce,' but without 'collaboration,' what the hell is it?" I STRONGLY encourage the collaborative community to invite Stephen Willis, Ph.D. to conferences as a plenary speaker because these very serious issues must be adequately addressed.