Some clients wonder why their collaborative divorce attorney cannot represent them in court if collaborative does not resolve their case. Some clients find it difficult to find the nerve to talk to one divorce attorney; the thought of having to meet two of them is daunting.
One reason is that North Carolina law requires a collaborative divorce attorney to withdraw if and when a lawsuit is filed.
But, that law is a product of the conviction that an attorney cannot wear two hats. That is, an attorney cannot simultaneously work as hard as they can to find a resolution, while also working as hard as they can to prepare an arsenal of evidence and arguments to win a lawsuit. Invariably, one of those goals suffers in the pursuit of the other.
The reason for the “mandatory withdrawal” of collaborative attorneys if a lawsuit is filed is that the collaborative attorney must be totally committed to the negotiation and pursuit of settlement to be effective. Collaborative attorneys have long recognized that being able to represent clients in litigation would seriously interfere with their full-fledged pursuit of a negotiated resolution.
A recent interview with noted Raleigh psychologist Dr. Ginger S. Calloway sheds light on the psychological underpinnings of this dynamic for attorneys and clients. Her interview with Cary Close was published in a recent issue of the publication of the Family Law Section of the North Carolina Bar Association.
Speaking of an attorney’s role in mediation, a different alternative dispute resolution process that shares some characteristics and goals with collaborative divorce, Dr. Calloway says:
You cannot wear two hats at the same time. You cannot wear a mediation hat at the same time you are wearing a litigation hat. While I am sure that many family lawyers out there will be shocked to hear this, I think that every attorney and client should agree prior to attending mediation that, if the mediation is unsuccessful, the attorney is going to withdraw or assign the case to another member of the firm.
Dr. Calloway continues:
Think about it. An attorney who is going to remain in the case regardless of whether the mediation succeeds cannot possibly be “all in” at the mediation. He or she is constantly thinking about his or her litigation strategy and what will happen if the case goes to trial. It serves as a pervasive impediment and hinders the parties’ ability to reach a settlement.
She concludes her point by saying:
There is a reason that mediations are mandatory: settlements are better than litigation, especially for children. This is a well-known fact from literature on children and divorce. Hence, why not give yourself the best chance of settling the case? Advocacy as an attorney at mediation and advocacy as a litigator are two completely different things. If litigation remains an option, the natural tendency is to say, “Fine, we’ll just take it to court.” If mediation is the only option for resolution of the case, the parties have no choice but to compromise and reach a settlement.
Dr. Calloway nails the inherent problem with expecting one attorney to both fight and resolve a case. Even seasoned divorce attorneys know that, in our own heads, and in our professional conversations, we roughly classify each of our cases as a “settlement” case or a “litigation” case. Attorneys may litigate some settlement cases and settle some litigation cases. But, we know what Dr. Calloway says to be true: An attorney cannot simultaneously put all of their effort into settlement and all of their effort into buidling a lawsuit.
Collaborative divorce attorneys are “all in” for the settlement of divorce issues. We agree up front that we will not litigate a case. We do not even try to wear two hats. Experienced collaborative attorneys, myself included, strongly believe that this commitment is the key to resolving divorce cases effectively and efficiently.
If you are searching for a divorce attorney, give some serious thought to whether you want an advocate that is going to be “all in” in helping your resolve your case or one that will wear two hats, as Dr. Calloway puts it.