Common Pushback & How We Respond

In this video, Jennifer, Craig and Mary Ann use common pushback techniques from other attorneys and respond in defense of Collaborative Law.

JENNIFER MOSHIER: I’m Jennifer Moshier. I’m the founder of Peaceful Family Law.

CRAIG CHERNEY: I’m Craig Cherney with Canterbury Law Group.

MARY ANN HESS: I am Mary Ann Hess and I’m the managing member of Folks Hess Kass.

JENNIFER MOSHIER: So Craig, Mary Ann, and I all work in collaborative law in cases together frequently and we all work in Phoenix, Arizona. And all of us have experience dealing with cases where we’ve wanted to try to get the case into collaborative process, but we heard pushback from another lawyer who perhaps hadn’t worked on a collaborative case before or just had some other reason.
I’m going to give you guys some of the reasons I’ve heard today, and I want to hear your responses.
So my least favorite – I’d love to say my favorite but I’d be being sarcastic, is “This case isn’t right for collaborative process” sometimes from an attorney who I know has never had a collaborative law case. What say you?

CRAIG CHERNEY: I would think my first reaction to that is: fear of the unknown. A lot of lawyers, like anyone else – they don’t want to tread where they haven’t treaded before. The good news is Arizona has codified and made lawful statutes to allow collaborative to apply to any divorce case. So even if the other counsel has not participated in the process, it’s fully codified, the rules are out there for everyone to understand, and can be implemented in virtually any case.

MARY ANN HESS: I think my first reaction would be, “Why? Tell me why.” And I’d like to be educated about information on that particular case about why it wouldn’t be appropriate for collaborative law. Because in my experience, I can think of few cases ever that aren’t appropriate for collaborative law.

JENNIFER MOSHIER: I’m going to give you guys another one: There’s been significant domestic violence in this case. We all know that that’s a common allegation in family law cases, and significant domestic violence can range from some stalking activity to actual physical abuse. What do you guys say?

CRAIG CHERNEY: Well, domestic violence jumps off the page because there’s ramifications not just immediately in the case but long term. Because these records, when they’re filed in the courthouse, are public record meaning employers, future spouses, your own children could read about these domestic violence allegations in writing, in perpetuity.
So unlike a regular case, collaborative – we could mitigate around that.

MARY ANN HESS: I think we’re doing victims of domestic violence a great disservice by starting from the position that you are not going to qualify for the process that is going to give you the most support possible. A lot of times we see in the domestic violence is an absolute imbalance in power, an absolute imbalance in information.
And in the collaborative law process, in order to help someone who’s been a prior victim, learn how to make a decision, have the information to make a decision, and have the information to create the skills and the best parenting plan possible for going forward with someone who has perhaps abused you in the past or is really an ideal candidate for collaborative law.

JENNIFER MOSHIER: That’s such a great point because family is all about the carrying on of something. And sometimes if you can stop the carrying on of that particular activity but still help the family go forward, it’s such a gift.
Okay, here’s another one: My client and your client are locked in long-term litigation. And I’m coming on the case as a new attorney and I say, “Hey, I’d like to use collaborative process. Is that an option?” The other attorney says, “You know what? These people are already so far along in court. Let’s just use mediation.” What’s the difference?

CRAIG CHERNEY: So mediation is when the parties go to a private office, a high-rise, what have you, and they sit in front of a third-party neutral, what we call the “fifth person,” because you have a lawyer, lawyer, client, client, and then the fifth person is the mediator. And you work throughout one day typically and you try to hammer everything through and get it done. That’s a one-day push and sometimes it works, sometimes it doesn’t.
Let’s contrast that with collaborative.

MARY ANN HESS: Well, in collaborative you have to have an agreement to create your own solutions. In mediation, a lot of times that mediator is creating a solution that the two of you can live with or simply to be done with the case, but you’re not really exploring the options that may be best for your family.

JENNIFER MOSHIER: These are really great responses, you guys. Thank you so much and I really appreciate your insights.

MARY ANN HESS: Well, I’m going to butt in here, Jennifer, because there was one more.

JENNIFER MOSHIER: Oh, you got one more? Okay.

MARY ANN HESS: And that’s the one I hear when my client says, “My husband or my wife – her lawyer/his lawyer says, ‘The only reason your lawyer wants to do collaborative is because you’re afraid to go to court.’”

JENNIFER MOSHIER: That’s right.

MARY ANN HESS: So what do you do when you hear comments like that?

JENNIFER MOSHIER: Well, I litigate. I absolutely litigate. Craig and I have both litigated, as well as you have all over the state of Arizona, and I’ve litigated in California as well. I’m not afraid of court. After 17 years litigating, I know court inside and out. Going to court makes me less nervous sometimes than going to a collaborative case, frankly. Court is my backyard.
The problem is you, as my client, don’t know court. You don’t know what it’s like. And I don’t know that you’re going to tolerate the ups and downs, the highs and lows, and there are very few highs. That rollercoaster is not for the faint of heart.
And while I can take it because I don’t have to live with your outcome, you, as my client, do have to live with your outcome. And so knowing what I know of having assessed you and knowing that about at least 85% of my cases are so appropriate for collaborative process, I’m still recommending collaborative process – not because I’m afraid of a judge, but because I’m afraid of really more what your life will look like for you and how dissatisfied you may be with that judge’s decision for you.
What about you, Craig?

CRAIG CHERNEY: No, that’s consistent. Think about if you have a choice for the long-term health for you and your children, you have two choices. Conventional: Let a stranger in a black robe make big decisions about your assets, your liabilities, and most importantly, your child custody. Contrast that with collaborative: You come into a position of solutions, collaboration, professionals, who know the area where you are the author and you are the creator of the long-term solution.

MARY ANN HESS: Well, and I think one of the things that’s gets overlooked in that blanket statement about going to court is that people who are trained in collaborative law are litigators. And until we get to that point where 100% of our practice is collaborative law day in and day out, we will continue to be litigators. And we bring that knowledge and we bring that skill to the collaborative process to help educate our clients so that they can make decisions that aren’t simply litigation-based.

JENNIFER MOSHIER: One thing I like to tell clients is, “I can give you either service. If I can give you the best service that I know is going to be transformative for your life, I’d rather give you that.” And so that’s what I most want to offer my clients, and I try to get every case that’s eligible for collaborative process, steer it in that direction if everyone’s onboard.