Some Lawyers Disagree

In this video, Mary Ann and Jennifer explore some of the opposing views of collaborative law.

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

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

MARY ANN HESS: Jennifer, you asked me a question about, “How do I respond when someone says, ‘This particular family’s case isn’t right for collaborative law’?” And I’ll tell you – maybe my response is kind of shortsighted, because there are very few cases I have ever come across that weren’t appropriate for collaborative law.

JENNIFER MOSHIER: Mary Ann, I could not agree with you more. I get that all the time. I don’t know how many times you hear this from other attorneys, but I hear those words, “This case isn’t appropriate for collaborative process.” Because I always send an immediate response to the other attorney on the other side and I say, “Could we consider collaborative process?” “Once my client’s been educated and knows about it and wants to use it or is open to it at least.” And invariably, that is the response from an attorney who has not practiced and is inexperienced in collaborative cases.
How do you deal with that?

MARY ANN HESS: First, I want to know what the attorney’s exposure is to collaborative law. And once we can get past that, it may be that we can have a good conversation and even bring in the clients for that conversation and have a four-way meeting and see what they would like to pursue on coming to the resolution.
But my experience with people being concerned about collaborative law is really kind of an educational point. They just don’t know or they just don’t understand that simply because you agree that you’re not going to go to court with that particular lawyer doesn’t mean your client gets any less services regarding resolving their issues. And in fact, they get more services and more information from their lawyer so that they can make good decisions.

JENNIFER MOSHIER: I so agree. My bandwidth when I’m in a collaborative case – all the discovery, all that middle-of-the-case stuff with the depositions, the subpoenas, the trial prep, it’s all gone. So I’m free to focus totally on just being the lawyer and getting legal counsel and being a counselor at law, which is why I went to law school, to give my clients that sense of very rich and focused advice about their specific situation.
I feel like litigation can sometimes offer a more cookie-cutter approach to cases because everything is on a set schedule that the court sets, whereas in this process we’re able to offer something that’s concierge.

MARY ANN HESS: Well, and one thing that I found in the collaborative process: When you reach resistance or you receive resistance from another lawyer, it’s because they don’t appreciate the hard work that goes into collaboration. And I will tell you, you can have a litigated case where it becomes so difficult, you are looking forward to the judge just telling you how it’s going to be, “Just resolve this issue for my client, resolve this issue for the other party.” And that is really a big benefit of collaborative divorce. The parties are resolving their own issue, and in collaborative law they are resolving it.
And sometimes, Jennifer, that’s a heck of a lot more work than simply telling the judge, “I’ve had it up to here, tell me how it’s going to be.”

JENNIFER MOSHIER: And Mary Ann, I know your heart for your clients is like mine. You care so much about these people, their lives. Tolstoy said, “Every unhappy is unhappy in its own way.” Our cases are all so unique and it’s such a gift to be able to really offer people that focused and case-rich advice about their specific set of circumstances and deal with the emotions as well as the legal issues that are so inherent in our cases.

MARY ANN HESS: I agree, Jennifer.