Collaborative Divorce Compared to Traditional Adversarial Court Litigation

divorce-mediationOpen and Full Disclosure by both you and your spouse, unlike in traditional litigation, is required by the Collaborative divorce process to provide each other full and honest disclosure of all relevant information. The spouses gather all financial and other necessary information to make decisions concerning division of assets and debts, support and parenting. The disclosure is done informally rather than using typical legal tools such as depositions, interrogatories and document requests. Each spouse does sign an asset and income statement under oath.

Commitment to a Fair and Equitable Outcome is a hallmark of the Collaborative divorce process which assists each of you in identifying your specific needs and interests. The techniques used and an atmosphere focused on problem-solving encourages you and your spouse and the Collaborative professionals to look for deep resolutions based on mutual understanding and compromise where interests conflict or differ.  In a litigated divorce, each party typically pursues a private agenda and tries to get maximum benefit in the situation. This often requires exposing and sometimes exaggerating the weakest rather than the best attributes of the spouse. In a litigated case, the attorney has no duty to advise the other attorney or client of a mistake in calculation, in the law, or in valuation. In fact, the “rules” lawyers follow in this type of representation may prevent such disclosures as being against their client’s interests.

Limited Scope Representation, unlike in traditional litigation, characterizes the Collaborative Law Participation Agreement which stipulates that the lawyers and their clients agree to limit the lawyers’ role to that of providing representation for settlement only. The attorney is hired to advise the client and achieve a negotiated settlement in a context of full and open disclosure where the goal is a fair and equitable resolution of all issues. This means if no agreement is reached, the attorney agrees not to represent the client in a litigated court action. Collaborative attorneys believe as much effort should be exerted toward settlement as is traditionally spent in preparing for and conducting a trial. If the attorney determines his client has been untruthful, withheld information, or in some other way undermined the agreed upon ground rules, the attorney must terminate the Collaborative Law process and withdraw as attorney for that client. In a Collaborative process, the attorney does not have and cannot use the “threat” of a court decision to resolve issues. The attorney does not benefit in any manner by helping his client take an unreasonable position. The attorney is required to advise the other spouse and his or her attorney of mistakes in law or fact.

A Participation Agreement, unlike in traditional litigation, is required by the Collaborative divorce process. You and your spouse will sign each of the Collaborative professional’s participation agreement in which you agree to follow the guidelines and procedures of the Collaborative divorce process.

Meetings in the Collaborative divorce process, unlike in traditional litigation, foster an efficient use of resources to gather information, analyze issues, and problem solve disputes. Rather than each side having a “view” of the case, all information is shared. You and your spouse have control over and involvement in the outcome and process. By the time couples decide to divorce, good communication and ability to compromise is often absent. The Collaborative divorce professionals are trained in conflict management and guide the negotiations as a team of co-equal problem solvers. Not every spouse is emotionally ready to deal with a divorcing partner face to face and so the Collaborative divorce process strives to minimize trauma.  By using a neutral divorce coach problems in communication are reduced and helpful techniques for ongoing communication are developed.

Enhanced Creativity, unlike in traditional litigation, allows for the Collaborative professionals to concentrate their skills on problem solving. Freed from the time used for court forms and requirements, the settlements achieved within the Collaborative process often include creative resolutions.

Schedule Determined by the Couple, unlike in traditional litigation, you and your spouse determine how much time you need to gather the information. Then you, your spouse and the Collaborative professionals are able to schedule meetings at convenient times. In a litigated case many courts impose deadlines for discovery and conferences with the judge and hearing dates which are inconvenient.

Less Costly Than Litigation, the Collaborative divorce process is able to reach a deep resolution of issues while still keeping the cost of the divorce much lower. In litigation, the expense to prepare for and undertake a litigated resolution in fees, time lost from work, and competing experts almost always exceeds the costs of a Collaborative divorce by a considerable amount.

Climate of Cooperation Reduces Stress, unlike in traditional litigation which tends to increase stress. The Collaborative divorce process requires you and your spouse and the Collaborative team to agree to work in good faith. The process tries to eliminate insensitive and exploitative conduct. You agree to deadlines rather than the court imposing them. Every divorce is difficult for many reasons. The Collaborative atmosphere is much less stressful than an adversarial litigated trial.

What happens if settlement can’t be reached? If a settlement cannot be achieved or if one of the spouses becomes adversarial or acts in a manner inconsistent with the terms of the Collaborative participation agreement, both Collaborative attorneys must withdraw from the case and the neutral professionals will not be allowed to testify in court. Each attorney will assist his or her client to find new counsel to pursue the cases in court and will work to make a smooth transition for the client.