Q. Can my spouse and I do a Collaborative Divorce with only one lawyer?
A. Collaborative Divorce is a process where you and your spouse each have your own attorney. The attorneys jointly facilitate the process and provide each client with legal representation. Both parties
would need to hire their own Collaborative Divorce lawyer for a Collaborative Divorce, so that the joint facilitation and legal representation can occur. Lawyers are ethically prohibited from representing
clients who might have different interests.
Q. How does Collaborative Law differ from a conventional attorney divorce settlements?
A. All good attorneys try to settle their cases, in conventional and in Collaborative Law cases. However, that is where the similarities
usually end. Here are some of the differences:
• Collaborative Law is a unique process, with its own rules, conventions, and methodologies. The rules, conventions, and methodologies are designed to create a safe and unpressured environment that allows the parties to explore settlement options in a manner that
can be rare (if even possible) in a conventional negotiation. The process is
designed to enhance safety for all parties at all stages.
• A basic premise in Collaborative Law is that the clients are able to make their own decisions, and can best express their wishes and desires themselves.
The decision may not be based on the law.
• The measure of success in a Collaborative Law case is a durable agreement that does not require enforcement. (Settlements
that are reached in a Collaborative Law case are memorialized in legal documents
that are enforceable if necessary.) To achieve durability, Collaborative Law uses different procedures and has a different focus from adversarial negotiations. Because emotions in a divorce run so deep, Collaborative Law attorneys encourage clients to take time with any tentative agreements before finalizing them, to ensure that
to the extent possible agreements and negotiations are not based on normal but
temporary emotional flurries, but on your values.
• Effective advocacy in the Collaborative Law process looks and feels differently from advocacy in an adversarial process.
Conventional adversarial and positional advocacy is generally ineffective and counterproductive in the Collaborative Law process.
• As a unique process, Collaborative Law requires study and experience to achieve mastery. Experienced Collaborative Law attorneys become settlement specialists, devoting considerable time and effort studying and working with the intricacies of human conflict, so they can bring that understanding to preparing and educating their clients, and facilitating negotiations.
Q. Do Collaborative Law cases take longer to settle?
A. Most Collaborative Law cases settle in a fraction of the investment of professional time than is the case in adversarial representation. In a Collaborative Law case, 100% of effort is spent helping the clients settle the case. With more than 95% of even litigated cases settling before trial,
in Collaborative Law no effort is wasted preparing for a trial that is highly unlikely to occur. Hence, Collaborative Law cases can often be settled much more efficiently
in terms of professional time. In terms of calendar months, Collaborative Law
cases often take nearly the same amount of time to settle.
Q. Is Collaborative Law mostly suited for couples who are basically in agreement and get along?
A. Not at all. Collaborative Law is a conflict resolution process that
is well suited for people who have very significant disputes. The only thing
that the clients need to agree on is a desire not to use an adversarial dispute
resolution process, and instead to use a problem-solving approach. Collaborative
Law is about helping parties who have profound disputes reach resolutions,
including those who may find it difficult to sit in the same room together.
Q. If the Collaborative Law process isn’t working well for us, can we change to another process?
A. Of course. The Collaborative Divorce process is entirely voluntary at all times. If you find it is not well-suited to you, the attorneys will assist you in transitioning to a different process. Although
neither attorney may represent the clients in any subsequent adversarial process, either client may
conclude the process at any time for any reason.
Q. Is Collaborative Law new? Has it been proved to work?
A. Collaborative Law was developed in 1990, so it has a 20 year history of
experience. Nationwide, over 30,000 attorneys have been trained in Collaborative Law. Internationally, thousands more have been trained. The Collaborative Law process has successfully resolved many tens of thousands of cases. It is a process that is accepted by both the American Bar Association and the American Academy of Matrimonial Lawyers. There are Collaborative Law statutes and court rules in a number of states across the country. Collaborative Law has been the subject of many law review articles and studies, showing generally
significantly greater satisfaction by clients than adversarial processes. Several law schools are now teaching Collaborative Law courses.
Q. Do Collaborative Law professionals have to coax or pressure clients into settlement?
A. Because the goal of the Collaborative Law process is to achieve a durable agreement instead of a temporary cease-fire, any coaxing or pressure by professionals would run contrary to the professionals’ goals, training and practices. Instead, the professionals educate the clients about their situation, and normally encourage clients to take their time to consider their options before finalizing any decision.
Interestingly, the many tools that are available to the Collaborative Law
attorney are more effective because they avoid the pressure of conventional
negotiation.
Q. Do Collaborative Law attorneys inform clients about the law?
A. Absolutely! Clients need to be informed of the law so they can make good decisions. Educating clients about the law is part of the professional obligation that attorneys have,
including attorneys who practice Collaborative Law.
Q. Why can’t Collaborative Law attorneys represent their clients in court on contested matters or if the process ends without agreement?
A. The disqualification of attorneys from representing their clients in any adversarial proceeding is an essential part of Collaborative Law, and
necessary to creating the safe and effective environment that allows the process to work
so well. For clients, hiring a lawyer whom your spouse knows cannot work against
him/her is a way for to
clearly demonstrate a commitment to a problem-solving approach in divorce. Disqualification
also allows the clients to openly express concerns and interests in front of both attorneys, and allows the clients to truly be assured:
• Neither lawyer will use anything said against them.
• Both lawyers are working solely towards settlement.
• Both lawyers are truly committed towards settlement.
It also allows attorneys to work together to facilitate the process in a manner
that would otherwise not be possible. It also means that everyone tries harder,
rather than heading to the courthouse at the first road bump.
Q. If lawyers can’t go to court, are their clients on their own preparing the legal paperwork, and filing the necessary papers with the court?
A. Collaborative Law attorneys are only disqualified from going to court on disputed matters. Collaborative Law attorneys routinely file Petitions, routinely appear at pretrial conferences, routinely prepare agreed joint motions, and routinely for entry of agreed orders.
Q. Is Collaborative Law expensive? Does Collaborative Law serve primarily wealthier clients?
A. Collaborative Law serves clients whose circumstances bridge the
entire financial spectrum. Since the Collaborative Law process usually costs clients less than
conventional negotiations, it
may be more suited for clients of modest means than conventional representation.
Unfortunately, no legal process is inexpensive, and that includes Collaborative Law.
Studies show that just as in conventional representation, complex Collaborative
Law cases are several times more expensive than simpler cases. A growing number of Collaborative Law attorneys are participating in pro bono and reduced fee programs for those who are less able to afford their services. Sadly, as with all such programs, need far outstrips supply.
Q. For Collaborative Law to work, do both parties need to have similar education, sophistication, and skills?
A. No. The process is designed to accommodate different levels of education, sophistication, and skills. Full support is provided to educate the less-sophisticated spouse to be able to fully participate. The process is designed to compensate to provide a level playing field.
Q. Can a manipulative spouse take advantage of a power imbalance in the Collaborative Law process?
A. Human conflict inherently has power imbalances. In a litigated case, there will be power imbalances;
one example is between a more skilled attorney and a less skilled one. A power imbalance can be perpetuated by the client in an adversarial system, for example by being overly aggressive or by engaging in deception,
or even by unequal access to funds for legal services. At a settlement conference
in a conventional case, a power imbalance is often magnified with abusive or negotiation tactics or coercion
against a party who is faced with a choice between caving in and an unaffordable
trial.
Like all processes, the Collaborative Law process is also subject to power imbalances
and manipulation; however, what makes it unique is that literally all professionals (both attorneys and the other team professionals) work towards leveling known
and observed imbalances,
which can lessen the likelihood of a power imbalance weighing in the outcome. The goal of Collaborative Law is to reach a durable agreement.
A durable agreement can only be reached if the parties own their resolution, which cannot occur if one party settles through capitulation
or artifice.
All professionals work to level the playing field to help their clients achieve
an agreement that is durable and not the result of manipulation or coercion.
Q. Does it disadvantage the client that lawyers practicing Collaborative Law are disqualified from going to court?
A. There is only one main disadvantage from disqualification. In the
unlikely case that the process ends without a final agreement being
reached, new attorneys must be retained. That adds some inconvenience, delay, and expense. Balanced against those disadvantages are advantages that clients experience from the Collaborative Law process.
As to every process, each client needs to weigh for themselves whether or not
the advantages outweigh the disadvantages.
Q. How successful is Collaborative Divorce at helping clients reach agreements?
A. While the numbers fluctuate a bit from study to study, the most
recent data at the time of this writing (compiled as of the end of 2010) was
that roughly 90% of Collaborative Law cases successfully resolved either with a
settlement or a marriage reconciliation. Of those few cases that do not settle
within the Collaborative Law process, the overwhelming majority settle in a
subsequent conventional negotiation.
Q. Are there clients who leave the adversarial/conventional legal process to enter into a Collaborative Law process?
A. Yes. Most every active Collaborative Law attorney has worked with clients who
have left the adversarial system (and even negotiations by conventional lawyers), because
they were able to assess for themselves that conventional representation and the litigation
system was heading them in a direction that was not consistent with their
values or their objectives.
Q. If the Collaborative Law process turns out not to be successful
for me, do I need to start completely anew?
A. Maybe, but probably not. While the discussions in Collaborative Law proceedings are confidential,
much of the information that is exchanged in the Collaborative Law process may
likely be used in subsequent representation. The confidentiality in the process extends to discussions, reports of experts, and information created specifically for the Collaborative Law process. All underlying data that is been exchanged remains fully usable,
and you and your spouse are allowed to carry over most agreements.
Q. What if my spouse does not disclose all information?
A. In a Collaborative Law case, both spouses sign a Participation
Agreement in which they commit to disclose all material information. Unfortunately, there is no process that
can guarantee that all information will
ever actually be provided. In litigation, parties may improperly withhold information
and persist even after the significant effort and expense of getting a court
order; similarly, they may similarly improperly withhold information in the Collaborative Law process. One advantage in the Collaborative Law process is that several professionals are reviewing information for omissions and inconsistencies,
which will lead to questions if something appears amiss. And both spouses can be asked to sign a sworn statement that information has been produced.
Most experienced Collaborative Law attorneys believe that the
information-exchange in Collaborative cases is more robust than the equivalent
"discovery" process in conventional cases. If a professional becomes aware that information is improperly withheld, then
the process will end.
Q. If a Collaborative Law case ends, doesn’t the client have to pay duplicate attorney’s fees for the same work?
A. Whenever a client changes attorneys, there will be some additional fees to bring the new attorney “up to speed.” But even on those few occasions when the Collaborative Law process ends without reaching a settlement, the clients are often benefited because they will be better informed, much or all discovery
(information gathering) will have been completed, and remaining issues will often be narrowed. Only if the case terminates from the Collaborative Law process at its inception will there be a 100% loss of the small amount of work that has been already done.
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Frequently Asked
Questions About Collaborative Divorce