Lawyers Who Pretend to be Collaborative But Aren’t

Lawyers Who Pretend to be Collaborative But Aren’t

I had a client from Angola consult me about a collaborative divorce. She had two children and had spent the previous year living in Angola with them, with her husband’s assent, volunteering to help her people with her medical degree. She had returned to the States, per her agreement with her husband, so that the children could spend the summer with him. Now it was time to work out the details of their permanent separation. 

Before I could contact her husband, however, to discuss the collaborative option, my client was served with an ex parte order prohibiting her from having any contact with her children at all, for fear that she posed a flight risk. When I next saw her, she was nearly hysterical, sobbing while she explained to me that her husband had apparently lied to the court in order to get the order. She pulled out documents she claimed he had signed showing that he had agreed that the children could spend the prior year in Angola, as well as the next year, as well.

I calmed her down as best I could and asked her if she would still be willing to enter into a collaborative participation agreement if I could convince her husband to do so. I looked at the documents she had brought me. The attorney on the other side, I was thrilled to realize, was collaborative. In fact, I had worked with her on a pro bono collaborative divorce matter in the past. I was certain that she would be interested in discussing the collaborative approach with her client.

How shocked was I when it seemed she would not. Oh, in theory, she did discuss it. But, she explained, her client was afraid to enter into a participation agreement, fearing that he would lose the advantage that the ex parte order afforded him. 

Of course, those were not her exact words. Here’s what she said:

I spoke to my client today and he is agreeable to using a collaborative facilitator to develop a Parenting Plan, but he would like to use her as a joint neutral expert in the ongoing litigated case in lieu of participating in the collaborative process. He is concerned about how the abatement for the collaborative process would impact the enforceability of the Emergency Order. He would prefer to have court oversight in the event urgent issues arise regarding the children. 

I reached back out and told this lawyer that the order could remain in place, and that my client would sign a temporary agreement to the same thing, and that I would hold my client’s two passports in my office safe, but she was not interested. In the meantime, we took the small token she did offer and the clients both began to work with the facilitator. 

This facilitator is one of those amazing mental health professionals who can ”Calm the Troubled Waters” in almost any situation. While my client is often reduced to hysterics when she reminds herself of her husband’s sabotage (which she can’t help doing; it’s like poking your tongue in the empty tooth socket), the facilitator can usually conduct her into a frame of mind in which she can make good decisions anyway.

Thus, it was that, with the facilitator’s help, the parents reached a 14-point agreement for temporary time-sharing, pending the return hearing on the ex parte order seven weeks out. However, when the husband’s lawyer drafted their agreement, she added a 15th clause, i.e. that the return hearing would be canceled. 

My client had not agreed to that.

Despite that one of the provisions of the temporary agreement is to allow the children to be enrolled in the Montessori school that both parents want them in (as they have fallen behind in school during this conflict), here is what the husband’s lawyer told me when I informed her that she had added a new provision to the parties’ agreement:

Why does she want to keep it scheduled? I cannot see any basis for a 3-hour return hearing in November if this stipulation modifying the ex parte order is signed. If she wants to proceed to the hearing, then that’s fine. But, we shouldn’t waste any more time on negotiating an agreement in lieu of a hearing that’s going forward. Thanks.

In other words, Wife can cancel the return hearing or Husband won’t agree to what he already agreed to with the facilitator. “If she insists on having her day in court, Wife can continue to go without timesharing for the next seven weeks. Oh, and we don’t really care if the children fall further behind in school because it’s not about the kids; it’s about what the lawyer wants. Not even what the father wants. What the lawyer wants.” 

Is this collaborative? No, it’s not. This is litigation.

About this week’s author Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University.  She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership in the American Inns of Court Movement.  For more information on Joryn’s professional experience, take a look at her resume.


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