Often in the litigation case the clients are advised not to speak to their spouse or ex-spouse about these matters without an attorney present. How does that work in collaborative law?
DiGIROLAMO: Yes, we feel that it is really damaging to the relationship and think that this is far superior to that litigation mode. We try to do most of the work in the four way meetings so that everyone can have input into the issues and, ultimately, the resolution. However, there are times when the parties can work through some of the issues without the lawyers being present. We try to give them a framework in which they can do that and then come back to the process with the attorneys and talk to us about what they came up with.

What did you mean by “protecting” the children from the litigation system?
DiGIROLAMO: It is unusual for children to be actually called in to testify before the judge or to talk to the judge but it does happen . I think that anybody would agree that that’s not the best place for a child to be. One of the other things that happens in litigation very commonly is that we have psychological evaluations where the children are interview by psychologists appointed by the court, sometimes interviewed with one parent, and then the other parent; or at one parent’s house and they the other parent’s house. It’s just very confusing and upsetting for the children. None of that occurs in the collaborative process.

So getting back to your individual practice, what percent of your practice is collaborative law?
DiGIROLAMO: Currently, I would say it is about 20-25% at any given time. I am hoping that within 5 years it will be up to about 80-85%.

Where do the litigators stand on this, the thousands of lawyers involved in law firms that pay their bills and earn their keep by litigating and litigating?
DiGIROLAMO: I think at first when they hear about it many of them feel threatened and do not feel they can earn a living in this way, but after they learn more about it and see those of us who are doing it, they come around to the understanding that they can make a living that benefits them as well as the client—it is sufficient to motivate them to join in. We’ve had tremendous growth in our group and in the number of attorneys who have committed to being trained in the process just in the last year.

So what do the critics of this say? And who are they?
DiGIROLAMO: At first, there were some ethical concerns raised by the fact that opposing parties were communicating freely with the other person’s attorney which is against all of the things we were taught as far as attorney-client privilege and that type of thing. However, because of the structure and the fact that everything is explained to the parties in detail at the beginning of the process, it was approved by the American Bar Association. They came out with an ethical opinion that said that collaborative law is acceptable as long as the parties understand what they are doing. So, the ethical concerns were one of the major roadblocks that had to be overcome and has been overcome, and other than that I would say the fear by the practitioners that they would not be able to make sufficient fees, that was also a roadblock, but I think that’s being overcome as well.

So, tell me, is the feeling different when you, as a person who is an attorney, resolve a conflict using collaborative law as opposed to your litigation practices? How is it different than when you are litigating a case, where there is a strain on your clients, on the opposing parties? How do you feel about all that from the attorney’s standpoint?
DiGIROLAMO: Well, there are two approaches to that question. One is to describe what typically happens in the litigation process, and there are two parts to that as well. One is what we call Motions practice. You’re in the middle of the case and something occurs that one party’s unhappy with, and you call the other attorney and you can’t resolve it, so your only choice is to file a motion. In Allegheny County we have motions– each judge holds motions a couple of times a month, a certain time, so you submit your motion and you go in and argue. You might get part of what you want, you might not get anything. You sit in kind of a cattle call situation, and for the importance of the issues are being dealt with, and the way the system works,– and I’m not criticizing the judges or even really the system itself because the people involved are absolutely doing the best they can. They’re very intelligent, caring, professionals who are doing the best they can, including the lawyers, the judges, the staff, everyone. However, when I sit there, I’m often thinking to myself, this is just no way to resolve these kinds of issues, whether it’s a custody schedule, whether its support for children…

There’s just not enough time to deal with what needs to be dealt with, the time for anybody to consider anything in the way it should be considered. That’s the motions practice. Then, to actually get to the end of the litigation style case, before you get to trial we have what’s called conciliation, where we bring our clients to the courthouse, they sit outside the judge’s office or chambers on chairs in the hallway and the attorneys go in and talk to the judge. And what we talk about in there are what issues we feel have been resolved and what issues remain to be resolved. The judge listens to this and makes some suggestion as to how the case might be settled. We have to go back out and talk to our clients, go back and talk to the judge, this goes on for two or three hours sometimes, going back and forth and back and forth.

Clients never get to see the judge.
DiGIROLAMO: The clients do not, unless the judge thinks that it is really going to help and on occasion they will talk to them, but rarely. So at some point, even assuming we get it resolved, what happens is this: the other attorney and I are sitting in front of the judge’s chambers with a pile of paper on laps, writing out the settlement agreement. And this is how I have settled dozens and dozens of cases in my career.

This sounds less than glamorous.
DiGIROLAMO: It is not glamorous, nor is it the most efficient or thoughtful way of resolving these very important issues that affect people’s lives, for the rest of their lives, including their children and themselves. That’s the litigation mode, so you can imagine the stress, making sure I remember everything on the checklist, everything that should be in the agreement. You know, what if this goes wrong, what if that goes wrong, you have to go through all that stuff in your mind as you’re writing it.

It must be frustrating. The parties don’t have a voice except for through their counsel.
DiGIROLAMO: Exactly right.

And it is really rare in litigation that the parties get to tell their story about what happened, whether it’s that they feel they shouldn’t be paying as much support as they are, or they need more support, or they need more time with their kids, or they want their spouse to take more time with the kids, whatever it is, they get, it’s very unlikely that they’ll ever get to tell anyone that story. So it is very stressful for everyone involved. It’s frustrating. Now that’s one side of the coin. Now you look at the collaborative side of the coin. Everything that we do in the collaborative process is based on needs of the parties. They do get to tell their stories, and when we come to agreement with various issues, we write everything down, we make sure that as much as we can with our experience in seeing what happens in these kinds of situations, every eventuality is covered and we do it in a very thoughtful way. So the stress level is way down. One thing that needs to be understood about the collaborative law process is that it is not without emotion and there’s often quite a bit of tension in the room when people are dealing with these issues and it’s not sitting around singing Kumbaya. There are some very difficult moments, people sometimes cry, scream, or have to get up and leave the room for a few minutes, but it’s all necessary. It’s very helpful to resolving the issues in the end.

So, where’s your mind set on all that? Where are you, where’s your mind, where’s your heart, where’s your feeling, when you are resolving using collaborative law?
DiGIROLAMO: Well, when I am doing the litigation process, because I’ve had lots of experience and I feel very competent and I know that I can do a good job for my clients, and I feel very comfortable in that setting in terms of being able to do a good job, within that context. But in the collaborative process I’m even more confident that the people involved are going to be truly satisfied to the extent that anyone can be when they are in this difficult situation, with the outcomes that we have. And so, as a person who cares about my clients, it’s much more satisfying.

Do you think it’s a better process?
DiGIROLAMO: There is no question in my mind that for most people it is a better process because of the nature of the issues involved. In other words, we’re not talking about someone in a car accident and we’re going to decide how much money they’re going to get. That’s something that’s pretty cut-and-dry: they’re going to get $50 thousand, they’re going to get a million dollars. With this, we’re talking about children’s lives, we’re talking about people’s retirement, their homes, all their possessions, even their reputation in the community. All the things that people care most about are involved in this process. And that’s why I think dealing with it in a private, respectful setting in which the parties have control over the process, makes a lot more sense.

Are there statistics on what type of people who are going down the road of collaborative law? What is the average income?
DiGIROLAMO: I don’t have any statistics about that. I would say that people who have more education are more likely to be aware of the possibility of having an alternative dispute resolution process, and therefore they tend to be more likely to use it. I think it could be just as effective for anyone.