Since the founding of our great nation, our disputes have been settled under an adversarial system.
Black’s Law Dictionary defines adversary system as “a procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker.” Some trace its origins to the days of trial by combat when disputes were settled with sword and shield. Today, we are more civilized and allow a judge or jury to ascertain the truth of the matter by reviewing evidence, hearing witnesses, arguments, and legal precedent. The rules are well known and each side is expected to follow those rules.
“The…adversary system reflects the conviction that everyone is entitled to [their] day in court before a free, impartial, and independent judge.“1
While the combatants prepare for court, our system in North Carolina also requires that we make good faith attempts to settle the case. Our Family Court system requires that the parties mediate child custody and equitable distribution (property division). Before equitable distribution or a child support matter comes on for hearing, the parties conduct a Pre-Trial Conference and often enter a Pre-Trial Order which narrows the issues and also offers an opportunity for settlement.
Empirical evidence shows that these good faith efforts toward settlement work in that the majority of equitable distribution cases actually settle at mediation.2 Child custody mediation in North Carolina has proven successful.3 Anecdotal data suggests that a high percentage of family law disputes are settled through judicially approved Consent Orders.
So what is wrong with the system? Critics say that the system is broken. Apparently, those in Charlotte, NC agreed enough to elect Bill Belk as a District Court Judge after he campaigned on a platform that the judicial system needed reform because it was “pitting family members against each other” and “creating fear for children.” While Judge Belk’s case is news for other reasons,4 academics see a paradigm shift from adversarial to collaborative in part because social scientists believe a child’s adjustment to divorce depends largely on their parent’s behavior.5
Under any system, children should not be used as pawns and parents should not discuss their legal battles with their child(ren). Under the adversarial system, there are consequences for such misbehavior. Judges usually order that the parents shall not discuss pending litigation with the child(ren) and shall not disparage the other parent within the hearing of a minor child. Parents who disobey such a court order can face jail time in North Carolina for civil and/or criminal contempt. It can also be a basis to modify the custodial arrangement for the child(ren).
At the extreme is the concept of collaborative law which has been described as “therapeutic jurisprudence” or “holistic law.” Under a collaborative law approach, the parties simply have to be trusted that they will properly behave until a court order can be entered after settlement as parties agree not to go to court. The concept originated in 1990 from Stu Webb, a Minnesota Attorney and self-described Buddhist, who says he “hated his litigation practice” and was ready to quit the practice of law.6
Under collaborative law, each party will generally:
- Sign an agreement that they will not litigate;
- Agree to disclose all information;
- Participate in a series of meetings between the parties and their collaborative lawyers in order to settle their case, often over a potluck meal;
- Agree that all communications during settlement negotiations shall not be used in a subsequent court proceeding; and
- Hire one expert in each field and split the costs (e.g., a collaboratively trained CPA, a collaboratively trained mental health professional) instead of hiring dueling experts.
Collaborative law differs from mediation in that there is no pending court case and while a mediator is a neutral third party, in collaborative law the parties’ attorneys facilitate the negotiations. If the parties are unable to reach an agreement, the collaborative law attorneys no longer represent them and they hire other attorneys to litigate their matter under the normal adversarial process. Proponents claim that 94% of cases are settled through the collaborative law model and that collaborative law is quicker, cheaper and less confrontational.7 Practitioners of collaborative law admit it is not suitable for cases involving domestic violence, drug or alcohol addiction, and mental illness.
Our legislature has authorized collaborative law and it is codified at N.C. GEN. STAT. § 50-70 et seq. However, its validity is not universally settled. At least one state has found it to be unethical.8 But North Carolina has found it ethical.9
Collaborative law has certainly not taken hold here in the Fifth and Thirteenth Judicial Districts. Perhaps this is because couples who are facing a divorce are not likely to hire lawyers who are more akin to mental health therapists and advocate that everyone get naked, jump in a pile, eat potluck and sign agreements mutually beneficial to everyone. If the couple is fair minded, we don’t need collaborative law to reach settlement (see statistics above showing the settlement process under adversarial law already works). If they are not fair minded, it is my opinion they are more likely to reach settlement if they have a court date and a lawyer who is prepared to try their case.
Collaborative law also seems to suffer from an inherent bias in that: everyone is there to decide what is best for the client without verification or the threat of sanctions to enforce a party’s good faith participation. I personally like Ronald Reagan’s “Trust, but Verify” approach over a “trust” only approach. By having only one expert “trained” in collaborative law, you only have one opinion as to what the property is worth (no dispute), and what should be done with the kids (no dispute). And the attorneys who are willing to practice collaborative law are naturally drawn to it for a reason. It would be hard under such a system not to settle cases. But how, without a third party neutral, do you really know the value of the property? What amount of child support should be paid? What is truly best for the child(ren) with respect to their custodial arrangement?
Perhaps I am old fashioned but I see collaborative law as an oxymoron. Lawyers are trained to do battle for their clients. Certainly, we learn the art of negotiation and seek settlements that are to the benefit of our client (and the children who are the subject of a custody dispute) but collaboration and law simply don’t fit together. You might feel really good about it but I don’t see how you can be sure you did the right thing.
3 Reynolds, “Back to the Future: An Empirical Study of Child Custody Outcomes,” 85 N.C. L. Rev. 1629, (2007).
5 Singer, Dispute Resolution and the Post-Divorce Family: Implications of a Paradigm Shift, http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1715&context=fac_pubs
Published September 16, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC