Wednesday, November 14, 2007

What Not to Expect in a Collaborative Case -- Part 1

Some people come into the Collaborative process with misconceptions that can hinder the effectiveness of the process and the client's satisfaction. Sometimes parties have had experience in the litigation or mediation approaches and make assumptions that Collaborative may operate in some similar ways. If the mistaken ideas aren't corrected right away, they can lead to serious problems in the case.

This post will discuss five common, but mistaken, expectations. Don't assume any of the following:

1. There will be a quick resolution. There are no shortcuts in Collaborative Law cases. The process is important and should be followed. The goals must be established. Information must be gathered, exchanged and analyzed. Brainstorming for solutions should take place, followed by evaluation of the ideas. Finally, negotiations should lead to agreements. The process works well and each step is necessary, so it will take some time.

2. The process is cheap. While there are some savings because a lot of time for court hearings and formal discovery is avoided, there is still a great deal of work to be done. Generally, complex and difficult cases, which are appropriate for Collaborative Law, will take time and effort to resolve, so there will be major costs for attorneys and other professionals. Again, Collaborative Law generally eliminates the litigation-style dueling experts by having neutral experts working for both parties, so that saves money, but the nature of the cases usually means that the fees will still be expensive.

3. Someone will speak for you. This is not a process where you can just sit back and watch. The parties are the focus of the whole procedure. In contrast to litigation, there is regular, direct discussion between the parties and both attorneys, with the load being carried by the clients. If you are not comfortable in speaking out at a joint meeting, you should discuss the situation with your attorney and the mental health professional (if you have one for the process).

4. You will start making major decisions in the first joint meeting. Some people get in a hurry (see #1 above) and want to start deciding who gets what, who will have primary custody, etc. at the first meeting. Again the process is important and success depends on following the structure set out above for ultimately reaching agreements. It's just not possible to make informed, creative, workable, appropriate decisions on major issues at the first joint meeting.

5. Don't assume any outcomes at the beginning. You'll drive yourself and everyone else crazy if you start off by discussing various outcomes early in the process. Sometimes people begin the process with ideas fixed in their minds, such as that "custody" must be decided a certain way, or they must keep their retirement fund, or child support must be set a certain way, or they will never agree to pay alimony. Taking and holding to those types of positions is contrary to the commitment to consider a variety of options and choose the ones that best help the parties achieve their goals.

If everyone will avoid the false expectations above, the Collaborative Law process will be a lot more effective for all.

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