Some practicioners try to sell the Collaborative Process as a cheaper alternative to traditional divorce. I think that this is unfair to clients and incorrect. It is absolutely correct that the collaborative process will be cheaper than going to trial 100% of the time. It is possible, however, in a traditional divorce to reach a very quick and cheap settlement. The difference between that settlement and a collaborative settlement is the way that the settlement is reached and the reasons behind the settlement. Specifically, the traditional divorce settlement is likely a quick and dirty settlement that does not address the needs and interests of the parties. In a collaborative settlement, which may take longer (and therefore cost more), the parties will be heard and long lasting and thoughtful settlement will be reached. Another way in which collaborative work can be more cost effective is via cooperative discovery as opposed to litigated discovery.
As an attorney who practices both Collaborative Divorce and traditional litigation I experience both the cause and the effect of the breakdown of the collaborative process.
The main reasons that I see for the breakdown of the process is as follows:
- Improper Initial Screening: A failure by the attorneys to properly understand the parties’ interpersonal dynamics and personalities. With good attorneys and good support personel most spouses can utilize the collaborative process. In situations where one party or the other cannot or will not share information in good faither; where one party or the other has been physically abusive; or where there is a complete lack of reasonableness, the collaborative process will not work. Many times a potential client will want to use the process, but doesn’t understand why he/she or the other party will not be able to do so effectively.
- Unrealistic Expectations: Many parties look into the Collaborative Process to save money or because they want something that they know a court cannot provide. These can be outcomes that result from the process, but not in every situation. If a party is unwilling to accept or back away from an unrealistic expectation the process will not work. This will result in both higher costs and a longer process.
What happens next. After the breakdown, the parties need to look for new traditional legal counsel and start the whole discovery and information gathering process anew. This is costly and frustrating. In addition, one party or another may be in a worse position than had the collaborative process never started in the first place. This can be very upsetting to clients and can be a potential source of problems for the initial collaborative attroney if he/she failed to properly screen the case.
If you are looking into the collaborative process, it is a terrific way to work through a difficult legal issue, just be sure that you ask your attorney, or your client, some tough questions to make sure the process is the correct one for your situation.
While traditionally collaborative divorce is thought of applying to the end of marriage, the collaborative process (or something very similar) can be used to help people begin their marriage. Collaborative pre-nuptial agreements are the result of open communication and full disclosure between a future husband and wife.
Both people meet with one attorney, after signing conflict waivers. That attorney ends up officially representing only one of the parties. At the meeting, the attorney explains his/her view of pre-nuptial agreements and works with the parties to come up with an agreement that they want to have drafted. Since it is a requirement of the statutory laws regarding pre-nuptial agreements that the parties fully disclose everything to each other, meeting together with the attorney should not be a problem. After the document is drafted, the parties bring it to another lawyer, who officially represents the other spouse. That lawyer reviews the document with them. If any issues come up, the parties and lawyers meet together to resolve the dispute.
Rather than having the pre-nuptial process cause a rift between the parties, this process allows the parties to work together on the roadmap of their financial future.
Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens & Margolin LLP we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.
Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome.
Collaborative Divorce as a process for resolving divorce litigation is not what most people think of when they think of divorce. While the process can be difficult and is always emotional for the parties, it can oftern produce a “happy divorce.”
Mark Schlueb of the Orlando Sentinel wrote an excellent article in the January 8th edition of the paper about this very issue. The entire article can be found here: http://www.timesleader.com/features/Collaborative_uncoupling_01-07-2010.html
A local attorney who is quoted in the article says that he believes that collaborative divorce is the “wave of the future.” I believe that my clients who have utilized the process and other attorneys who have had success with it would agree. Gambler the Cat Rolling the Dices