Monday, March 16, 2009

Is Collaborative Law Really Speedier Than Litigation?

Usually, it is, although it's hard to know. Comparing two litigated cases is hard to do because of so many different variables in each case: different judges, different emotional states of the parties, different facts, different histories of the parties, different motivations, and so on. Although people try to compare divorces all the time, the comparisons are not fair or accurate because of the differences in the cases. It's easy to find a few things the cases may have in common, but it's the differences than prevent the cases from being fair comparisons. For the same, and other, reasons, comparing a litigated case to a Collaborative case is inappropriate.

Having said that, I would still argue that Collaborative cases will usually be resolved sooner than the average litigated divorce that is contested. Collaborative Law cases would be counted as contested cases because the parties use the process to resolve issues that they have not been able to agree on.

Collaborative Law cases could take months and months to complete, if the parties want to take that long, but the "average" case will usually take no more than 4 or 5 months, and often, quite a bit less. In Tarrant County, and probably most large urban counties (except Harris, with the famed Rocket Dockets), it usually takes at least a year for a contested case to be resolved.

Nevertheless, a large number of Collaborators seem to end up feeling like their cases are taking forever to resolve. There are several reasons for that, even where the cases are resolved much more quickly than they would be in litigation.
  • The parties to the lawsuit usually have no point of reference. The attorneys can easily imagine the amount of time that would pass as they experience the various routine stages of a contested, litigated case: filing, setting a temporary hearing, doing discovery, getting a scheduling order for all the usual steps, attending mediation and preparing for, and participating in, final trial. Attorneys know how long various steps take in litigation and what would be happening if the case were in litigation. On the other hand, the parties usually only know what they are experiencing in their case, so they don't realize that they are actually moving along relatively quickly.

  • The face-to-face negotiations are sometimes much more stressful for the parties than litigation where the attorneys do most of the speaking and work. Although meetings are usually limited to a maximum of two hours at a time, the meetings can be tiring and emotionally draining, although they are not always so. Stressful events seem to take longer than enjoyable ones.

  • Sometimes, the parties get bogged down in small issues and get frustrated. Experienced attorneys and a mental health professional will do their best to recognize the pace and the frustration and will try to keep the process moving forward. But, it will happen occasionally.
  • Parties often get frustrated because they see just one solution to some problems and the professionals in the case insist that the parties discuss other possible solutions. Many people who agree to use the Collaborative approach have a hard time following the "Roadmap to Resolution" that is often used to create solutions that are acceptable to both parties. The Roadmap includes steps that involve creating or considering multiple possible solutions before choosing one for the settlement. Some people, having forgotten the Roadmap, get frustrated and start to feel that the process is moving at a snail's pace.
The parties using Collaborative Law should keep in mind that they are not in a race. A speedy resolution is usually not one of the goals they come up with at the outset. Most of time, the parties are more concerned with such things as creativity, customizing solutions, maintaining privacy, keeping control over the process and maintaining family relationships.
If you are in a Collaborative case and start to feel like the case is really dragging, talk to your attorney or the mental health professional (if one is being used) about your concerns. In all likelihood, they will tell you that the alternative is a much slower process in their experience. And they would be right!

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