Friday, April 23, 2010

Can You Use Collaborative Law Without Trust?

A common concern many people have when considering using Collaborative Law is whether they can trust the other party. Some people think they can't or shouldn't use Collaborative if they can't trust the other side. To some extent that's true, but trust really exists on a continuum ranging from complete trust to no trust at all. Trust is not an absolute and it changes, to some extent, from issue to issue. Most of the time, parties have a trust level somewhere in between the two extremes. That means that they trust the other party some of the time, but not always.

For the cases where there's no trust at all, neither Collaborative nor litigation can guarantee a comfortable result. There will probably always be a suspicion that the other party lied, hid facts or misled. For the cases where there's some trust, but also some suspicion, the choice of process becomes a judgment call.

In reality, Collaborative Law and litigation rely on the same ultimate enforcement mechanism, which is having a court take action. In Collaborative Law, that would require the parties to change attorneys, which would cost both sides. In addition, each system has some additional means of ferreting out the truth.


  • Written discovery is often used to obtain documents, explanations and admissions about assets and other issues. That can be supplemented by oral depositions where direct questions are asked of witnesses (usually at least the parties) who are required to answer under oath.
  • Inventories . In divorces in Texas, we usually rely on sworn inventories and appraisements prepared by each side. In litigation, each party prepares his/her own inventory. Each inventory document usually has language saying that the party swears that all assets and liabilities have been correctly disclosed, to the best of the party's knowledge.

In Collaborative Law cases, we don't use written discovery or depositions usually. Instead, we rely on a cooperative process with many layers of protection built in. These layers include the following, that don't occur in litigation.
  1. The Participation Agreement that is signed by everyone at the beginning of the process has a commitment by each party to be truthful. It also has many comments about the importance of honesty, transparency and cooperation. While there's no guarantee that every party will always comply, having the written explanation and the discussion at the signing probably enhances the chances for success.
  2. The roles of the attorneys and other professionals are different. Attorneys are required to make sure that both parties are operating under the Collaborative rules. All of the professionals are charged with making sure the process is honest and transparent.
  3. The neutral financial professional (FP) is an extra safeguard for both parties. The FP reviews and analyzes all the financial information for both parties and makes sure it is complete and accurate. That's an extra set of trained eyes reviewing everything.
  4. The neutral mental health professional (MHP) also helps make sure the parties are being open and honest. The MHP works with the attorneys to help manage the process and ensure cooperation by both parties.
  5. The financial professional usually prepares either a sworn inventory or a very detailed spread sheet to organize all the parties' financial information. The FP usually reviews the original financial documents to complete the inventory or spreadsheet.
  6. If necessary, the parties can sign a sworn statement that all relevant information has been provided.
Bottom Line: No system is perfect. There will always be people who try to lie or hide information or assets. There are at least as many ways to catch cheaters in a Collaborative case as in a litigated case, but there are more people watching normally to prevent cheating in a Collaborative case. From my experience, people in a Collaborative case take their agreement seriously and the professionals ensure that everything is done properly.

Regardless of the system, the ultimate remedies are the same whether the case is in Collaborative or litigation. People hide assets and lie all the time in litigated cases. There, an attorney can file a motion to enforce or to divide undisclosed assets or to take some other action to punish a dishonest party. If necessary, that can be done in a Collaborative case, after the attorneys withdraw. Normally, the person caught cheating is also required to pay attorney's fees.

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