Glassman vs. Kolodney: Collaborative Law for the Economically Disadvantage Spouse.

Few Words about “Glassman vs. Kolodney”:
Two outstanding Family Law Practitioners in California (in alphabetic order: Fredrick J. Glassman, Esq.  & Stepehen A.  Kolodney, Esq.),  have honored the “Culture Counts” to present and discuss their opposing points of views on the suitability of the Collaborative Practice for the economically disadvantaged spouses.
Mr. Kolodney begin this discussion by stating that “I very much agree that…the difference in culture results in some cases becoming very difficult cases. My concern is …with what I believe is the California model for collaborative divorce. To me, it is unwise for the economically disadvantages spouse to ever participate in a collaborative divorce process where their lawyer, if the case is not settled, must withdraw from future representation. This gives way too much power to the economically advantages spouse and their lawyer.”
To this Comment, we read Mr. Glassman‘s response and Mr. Kolodneys’ Reply as follows.
“Culture Counts” welcomes further Comments, in support of either points of view.
Admin

Glassman vs. Kolodney:
Collaborative Law
for the Economically Disadvantage Spouse

FRED SAYS:
Opponents to the collaborative law process often cite that an economically disadvantaged spouse should never participate in the collaborative law process. Those in support of withholding such potential clients from collaborative argue that there is a disproportionate power balance on the side of the economically advantaged spouse and his or her lawyer. It is obvious that such position stems from the disqualification clause i.e. the requirement for the collaborative counsel to withdraw from representation if and when the collaborative law process is terminated prior to resolution.

SAK REPLY:
FIRST, YOU COULD EASILY ELIMINATE THE CONCERN/ISSUE BY FOLLOWING WHAT I AM TOLD IS THE EUROPEAN MODEL, THAT COLLABORATIVE COUNSEL CAN REPRESENT THE CLIENT IN TRADITIONAL LITIGATION IF THE COLLABORATIVE PROCESS DOES NOT WORK.
I RARELY SPEAK IN ABSOLUTES BUT I DO THINK THERE IS A TERRIBLE DISADVANTAGE FOR THE ECONOMICALLY DISADVANTAGED SPOUSE TO PARTICIPATE IN A COLLABORATIVE LAW PROCEEDING, PARTICULARLY IF THERE IS NOT A SATISFACTORY PENDENTE-LITE ORDER IN EFFECT.
THE ABILITY OF THE ECONOMICALLY ADVANTAGED SPOUSE TO DELAY IS OBVIOUS, EVEN WHILE HOLDING OUT THE SPECTER OF COOPERATION, THE INCENTIVE TO DELAY IS OBVIOUS AND UNLESS IT IS ONE OF THOSE VERY UNUSUAL CASES WHERE THERE IS NO QUESTION OF GOOD FAITH BY THE ECONOMICALLY ADVANTAGED SPOUSE, THERE NO REASON FOR COLLABORATIVE COUNSEL, AND IT WOULD CLEARLY BY THE OBLIGATION OF LITIGATION COUNSEL TO OBTAIN , A PENDENTE LITE STIPULATION FOR CHILD AND SPOUSAL SUPPORT.
THE POSSIBILITY FOR LITIGATION ADVANTAGE THROUGH THE COLLABORATIVE PROCESS IS CLEAR.  THAT LITIGATION ADVANTAGE GETS MULTIPLIED BY AN UNKNOWN FACTOR WHEN THE DISADVANTAGED SPOUSE, WHO PROBABLY HAD TO BORROW MONEY TO RETAIN COLLABORATIVE COUNSEL, OR USE SCARCE SAVED MONIES TO DO SO, IS DELAYED IN THE PROCESS, DOES NOT GET SUPPORT WHILE THE COLLABORATIVE PROCESS GOES ON AND THEN NEEDS TO FIND MONEY TO RETAIN LITIGATION COUNSEL WHEN THE COLLABORATIVE PROCESS DOES NOT GO AS PLANNED.
LITIGATION COUNSEL CAN EASILY ENTER INTO A STIPULATION FOR A STAND-STILL DURING SETTLEMENT NEGOTIATIONS, OR ENTER INTO WHATEVER STIPULATION IS APPROPRIATE, AND STILL BE AVAILABLE IF THE SETTLEMENT DISCUSSIONS DO NOT WORK.  BECAUSE DIVORCE IS SO STRESS EVOKING – DEALING WITH IMPORTANT SUBJECTS AND EMOTIONAL ISSUES, SUCH AS MONEY, CHILDREN, THE LOSS OF LOVE, THE LOSS OF TRUST AND THE UNCERTAINTY OF THE FUTURE – EARLY SETTLEMENT IS NOT LIKELY IN MANY CASES.
FRED SAYS:
I would disagree with such an assumption for a number of reasons; namely, the following:
1. Family Code Section 2013 indicates that parties may utilize a collaborative law process to resolve the matter by using their best efforts and by making a good faith attempt to settle the case without resorting to judicial intervention;
SAK REPLY:
SO WHAT.  ALTHOUGH SOMEONE THOUGHT IT NECESSARY TO CREATE A SPECIAL CODE SECTION FOR “GOOD FAITH ATTEMPT TO RESOLVE DISPUTES” IN THE COLLABORATIVE LAW PROCESS, IN TRADITIONAL REPRESENTATION [WITH THE LAWYER BEING ABLE TO CONTINUE THE REPRESENTATION IF SETTLEMENT IS NOT REACHED] THAT HAS ALWAYS BEEN THE MANDATE AND IS EVERYWHERE IN THE FAMILY CODE AND IN CASE LAW.
SECTION 271 TALKS ABOUT “REDUCE TE COST OF LITIGATION BY ENCOURAGING COOPERATION BETWEEN THE PARTIES AND ATTORNEYS.”  WE ALL KNOW THAT AMONGST THE FACTORS TO BE CONSIDERED IN A FEE APPLICATION IS THE REASONABLENESS OF THE POSITION OF THE PARTIES AND THE WILLINGNESS OF COUNSEL TO SEEK AMICABLE SOLUTIONS TO ISSUES.
IN FACT THAT IS THE REASON WE SO OFTEN, AT TRIAL, BIFURCATE THE FEE ISSUE SO IT CAN BE ARGUED AFTER THE COURT HAS RENDERED ITS DECISION SINCE, ONLY THEN, CAN COUNSEL DISCUSS SETTLEMENT OFFERS.  CAN YOU IMAGINE A CASE WHERE THERE WAS NO SETTLEMENT NEGOTIATION ON ISSUES OTHER THAN PERHAPS A MOVE-AWAY WERE ONE PARTY WAS ADAMANT ABOUT MOVING?
FLC SECTION 2100 STATES “IT IS THE PUBLIC POLICY OF THE STATE … (1) TO MARSHALL, PRESERVE AND PROTECT COMMUNITY AND QUASI-COMMUNITY ASSETS … THAT EXIST AT THE DATE OF SEPARATION.”  THAT OBLIGATION WOULD INCLUDE MAKING REASONABLE EFFORTS TO RESOLVE ISSUES WITHOUT EXPENSIVE LITIGATION WHEN POSSIBLE, OR TO AT LEAST MAKE AN ATTEMPT TO DO SO.
FLC SECTION 2100(b) SAYS “SOUND PUBLIC POLICY FURTHER FAVORS THE REDUCTION OF THE ADVERSARIAL NATURE OF MARITAL DISSOLUTION AND THE ATTENDANT COSTS BY FOSTERING FULL DISCLOSURE AND COOPERATIVE DISCOVERY.”  THAT LANGUAGE CERTAINLY CONTEMPLATES REASONABLE SETTLEMENT NEGOTIATIONS AFTER FULL AND COMPLETE DISCLOSURE OF ASSETS AND LIABILITIES, NOT BEFORE THAT DISCLOSURE TAKES PLACE ALTHOUGH, OF COURSE, PRE-DISCLOSURE SETTLEMENT COULD OCCUR IF THE PARTIES AGREED TO DO SO, AS UNWISE AS THAT MAY BE.
FLC SECTION 2450, CASE MANAGEMENT, REFERS TO “FOCUSING ON EARLY RESOLUTION BY SETTLEMENT.”
FLC SECTION 3160, ET.SEQ. CONTAINS THE MEDIATION PROVISIONS REGARDING CUSTODY AND 3161 TELLS US THAT IT IS TO PROVIDE RESOURCES TO TRY TO DEVELOP A RESOLUTION OF ISSUES TO REDUCE ACRIMONY BETWEEN THE PARTIES.
ENOUGH RESEARCH AND STATUTE CITATION, THE TRADITIONAL BAR HAS ALWAYS BEEN INVOLVED IN MEDIATION AND COURT REPRESENTATION IF IT FAILS.  I WAS PART OF THE EXECUTIVE COMMITTEE OF THE FL SECTION WHEN WE INITIATED THE MEDIATION PROGRAM AT THE COURT, THE OBJECT TO ENCOURAGE RESOLUTION FOR THE LAWYERS WHO WERE NOT INVOLVED IN THEIR CASES OR WERE HAVING DIFFICULTY NEGOTIATING SETTLEMENT.  TO SUGGEST THAT THE TRADITIONAL BAR IS NOT FOCUSED ON SETTLEMENT NEGOTIATIONS IS JUST PLAIN WRONG!
2. FRED SAYS:
Prior to entering into a collaborative stipulation, or written participation agreement, it is imperative that collaborative counsel obtain implied consent from their prospective client to enter a collaborative law process. This means counsel must not only explain the differences between traditional litigation, mediation, collaborative and any other process model, but that counsel should explain the “pros” and “cons” i.e. advantages and disadvantages to the client for participating in such process options. If it appears that an economically disadvantaged spouse may be impaired or unable to participate on an equal basis with the economically-advantaged spouse then, and in such event, counsel should advise such spouse he or she has the choice of electing other process options;
SAK REPLY:
PEOPLE WHO ARE SEDUCED BY THE MARKETING EFFORTS OF COLLABORATIVE LAWYERS – EASIER, CHEAPER, FASTER – ARE EVER HOPEFUL THAT THEY WILL BE ABLE TO HAVE REASONABLE SETTLEMENT DISCUSSIONS WITH THEIR SPOUSE.  THAT MAY BE TRUE BUT, IF NOT, THEN THEY ARE OUT OF LUCK BECAUSE THEY WILL HAVE TO CHANGE LAWYERS TO GET INVOLVED IN THE LEGAL PROCESS.
EVERYONE WOULD LIKE TO THINK THEY ARE REASONABLE AND MOST EVERYONE WOULD LIKE TO THINK THAT THEIR SPOUSE WILL BE REASONABLE.  WE KNOW THAT IS NOT TRUE IN MANY CASES.  THE ECONOMICALLY DISADVANTAGED PERSON, WHO DOES NOT HAVE ALTERNATIVE RESOURCES TO HIRE TRADITIONAL COUNSEL IF THE COLLABORATIVE PROCESS FAILS, ARE STUCK AND MUST YIELD, OR BE MORE COMPROMISING THAN APPROPRIATE, TO THE OFFER OF THE ECONOMICALLY ADVANTAGED SPOUSE.
3. FRED SAYS:
However, an economically-disadvantaged spouse is protected by having the collaborative matter conducted pursuant to Los Angeles Superior Court Rule 14.26 which indicates, among other things, that consultants such as financial experts, are jointly retained on a neutral basis, to assist the parties; and, thus, all of the financial information inuring from the economically-advantaged spouse will be not only presented but evaluated by the neutral expert for the benefit of the economically-disadvantaged spouse;
SAK REPLY:
PARTIES THAT COOPERATE OFTEN HAVE JOINT APPRAISERS.  HOWEVER, THERE IS A VERY SERIOUS QUESTION ABOUT THE USE OF A JOINT FINANCIAL EXPERT.  HOW FAR DO THEY GO TO PURSUE CONTROVERSIAL OR DISPUTED ISSUES, DO THEY HAVE ANY BIAS WHICH WORKS IN FAVOR OF THE ECONOMICALLY ADVANTAGED SPOUSE, IF THERE ARE UNRESOLVED ISSUES, HOW DOES A JOINT EXPERT PRESENT THEM IN A FORCEFUL WAY?
4. FRED SAYS:
Collaborative counsel have a continued obligation to evaluate whether his or her client should terminate the collaborative process; and, will do so in the early stage of the process, if it appears that the client is not reaping the benefits of the collaborative process, so that the client does not spend an inordinate amount of time and energy in a process that will ultimately be spearheaded by the unbalanced power of the economically-advantaged spouse;
SAK REPLY:
AT WHAT POINT DO YOU TELL A FAIRLY DESPERATE PERSON THAT THEY HAVE TO HIRE LITIGATION COUNSEL.  THIS SOUNDS GOOD BUT I HAVE SERIOUS DOUBTS HOW IT WORKS IN PRACTICE.
5. FRED SAYS:
The obligation for full disclosure by both parties, together with their collaborative counsel’s obligation to assure the other spouse that his or her client is an appropriate candidate for the collaborative process, will inevitably balance the scale for having the financial picture placed on the table, openly and completely disclosed, for evaluation and ultimate resolution; and
SAK REPLY:
THERE IS AN OBLIGATION FOR FULL DISCLOSURE IN EVERY CASE.  IN MOST CASES, EVEN AFTER FULL DISCLOSURE, THERE ARE STILL ISSUES TO BE LITIGATED.  AFTER FULL DISCLOSURE, THERE OFTEN STILL REMAIN ISSUES PERTAINING TO:  2640 CLAIMS, BREACH OF FIDUCIARY CLAIMS, REIMBURSEMENT ISSUES AND THE LIKE, OR THOSE ISSUES NEED TO BE EXPLORED BY COUNSEL EVEN IF NOT RAISED BY THE CLIENT.  THESE ARE ISSUES THAT ARE VERY DIFFICULT TO RESOLVE AND OFTEN INVOLVE SUBSTANTIAL AMOUNTS OF MONEY RELATIVE TO THE SIZE OF THE MARITAL ESTATE.
IF THERE ARE NO ISSUES TO LITIGATE, AFTER CONFIRMING THE VERACITY OF REPRESENTATIONS, AND DISCUSSING THE OPTIONS THAT THE CLIENTS HAVE AND MAY OR MAY NOT WANT TO ASSERT, I ASSUME THAT TRADITIONAL COUNSEL THEN WOULD ENGAGE IN MEANINGFUL AND SUCCESSFUL SETTLEMENT NEGOTIATIONS.
6. FRED SAYS:
Full transparency, cooperation, and intent to amicably resolve without court intervention is mandated from the inception to the conclusion of the collaborative case; and, thus, if at any time it appears that either spouse is not willing to fulfill his or her aforementioned commitments then, and in such event, early withdrawal by the client and/or collaborative counsel will occur, usually without much “downtime” and without significant expense to the economically-disadvantaged spouse.
SAK REPLY:
I SERIOUSLY DOUBT THAT THE UNCOOPERATIVE ATTITUDE SHOWS UP IN THE EARLY STAGES OF THE PROCESS.  THE FINANCIALLY ADVANTAGED PARTY WILL DEVELOP THE UNCOOPERATIVE ATTITUDE FURTHER ALONG IN THE PROCESS, WHEN DELAY  BECOMES MORE AND MORE DIFFICULT.
I AM UNABLE TO REALLY COMMENT ON WHAT FRED SAYS BECAUSE I THINK THESE STATEMENTS ARE SORT OF HOPEFUL THOUGHTS ON HIS PART.
IF THE ASSUMPTION IS THAT COLLABORATIVE LAWYERS ARE HONEST AND COMMITTED TO RESOLUTION OF CASES AND TRADITIONAL LAWYERS ARE NOT, I STRONGLY DISPUTE THAT SUGGESTION.
I WOULD BE VERY INTERESTED TO KNOW HOW MANY CASES ARE RELEASED BY COLLABORATIVE LAWYERS FOR THE REASONS FRED DISCUSSED.  IF THAT OCCURS, AT WHAT STAGE OF THE PROCESS DOES IT HAPPEN?
AS I THINK WE KNOW, LESS THAN 10% OF THE CASES GO TO TRIAL, PROBABLY LESS THAN 5% OF THEM.  I THINK THAT ALL STATISTICS WILL BE SKEWED SINCE THE COLLABORATIVE LAWYERS START WITH PEOPLE WHO ARE MUCH MORE OPTIMISTIC ABOUT EARLY SETTLEMENT AND COMMITTED TO DOING SO.  ONCE WITHIN THE PROCESS, IT CAN NOT BE EASY FOR THE ECONOMICALLY DISADVANTAGED PARTY TO DISENGAGE FROM IT BECAUSE OF ECONOMIC CONSIDERATIONS.  ARE THERE ANY FOLLOW-UP SURVEYS TO DETERMINE THE LEVEL OF SATISFACTION OF THE PARTICIPANTS WITH THE END RESULT?  IF NOT, HAVE YOU CONSIDERED IMPLEMENTING SUCH A SURVEY?


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