Friday, April 18, 2008

I Don't Want to Lose My Lawyer

One of the most common complaints about Collaborative Law is that if the process breaks down, both attorneys will have to withdraw. Some parties spend a considerable amount of time selecting an attorney. They may rely on the advice and information offered by friends or trusted advisers. They may have researched quite a bit on the Internet. After hearing how experienced, effective and knowledgeable an attorney is, a client often is reluctant to agree to a process that could not only fail, but which could cost the chosen attorney.

In a similar vein, after starting work on a file, many attorneys are reluctant to agree to withdraw from representing a good client just because the negotiations were unsuccessful. Sometimes, the failure to reach an agreement is the fault of the other party. Either way, it may not seem "fair" to have to withdraw.

As an attorney, I certainly understand the discomfort in agreeing to possibly withdraw, and I can sure understand how many clients feel. Nevertheless, as much as I would like to think that I am indispensable, I have to admit that there are many other quality attorneys with plenty of knowledge and experience who can more than just adequately represent my client. In other words, the biggest potential loss may be for me to lose a client. Intellectually, I know I am clearly replaceable. There are many fine attorneys available who can litigate a case if needed. I just hate to lose the business, and I think that is generally true for all attorneys.

Actually, my opinion is that the withdrawal requirement is one of the best mechanisms to help ensure success in the Collaborative process. The fact that both the attorney and the client have a lot to lose creates an incentive to negotiate seriously, in good faith, and not give up. It is very easy to reach a point of disagreement and have one party or both get tired of arguing and say, "If you don't agree to this, I'll just take you to court and let the judge decide." Fortunately, that's not an option in a Collaborative Law case. Instead of just punting an issue to a judge, the choices are to become creative and find new solutions or go out and hire new lawyers so you can go to court.

As a result, the great majority of Collaborative Law cases are successful in reaching agreement. The logical sequence of setting/defining goals, gathering information, brainstorming and then negotiating to reach an agreement is very successful. Collaborative cases also encourage the creative use of other resources, such as neutral experts for various issues. In Collaborative Law cases, the parties are not bound by the "standard" approaches or guidelines. In fact, they are encouraged to think outside the box and to try other unique solutions.

The bottom line is that attorney withdrawal provision in the Collaborative agreement is one of the most important reasons why the process works. It provides the best incentive for both clients and attorneys to work together effective to solve the marital problems.

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