Sunday, July 1, 2012

What Happens if Someone Refuses to Provide Requested Information?

This is a common question, but an uncommon problem.  It is a logical question if one is coming from the world of family law litigation.  Why?  Because people are deceitful and hide or destroy evidence all the time.  Sometimes they get caught.  Sometimes they don't.  That's litigation.
In Collaborative Law, cases are supposed to operate differently.  People are expected to voluntarily cooperate in sharing information without going through all the formalities of litigation discovery.  To many attorneys, used to working with clients in litigation, it is hard to understand how or why a voluntary system would work.
The simple answer is that it is up to the attorneys and other professionals to screen out the bad apples, the clients who are inherently dishonest or who clearly aren't comfortable opening up everything.  Many of the bad apples aren't interested at all in trying to be cooperative and sharing information, so many problems are avoided.
Still, there are some problems that come out, even from honest, well-intentioned people.  Maybe the information is embarrassing or showing certain information will likely lead to bigger fights, or maybe they are getting caught in some lies and react the way many people have tried in the past -- stonewalling.
If that happened, the options for dealing with it would be:  (This is assuming that the information exists, is available to at least one person and the information is deemed, by one or more of the professionals,  relevant to an important issue.)  Here are some possible courses of action:
  • Try to find the information through another source.
  • The party's attorney would talk with the client to try to gain cooperation.
  • The mental health professional or the financial professional would talk with the party.
Possible termination.  If none of those steps works, the professionals and the other party have the right to terminate the process or to continue the process without the information.  If the process is terminated, both sides will need to hire new attorneys to complete the legal action.  The threat of that additional expense might be enough to gain cooperation.  If the case moves to litigation, it's likely that the information can be ordered to be produced, but there's still no guarantee of compliance.  Of course, a judge can make the uncooperative party pay for it at the decision time.
Many people considering Collaborative Law wonder about how to force the other side to disclose necessary information.  In reality, it's mostly a theoretical question.  In over 10 years of doing Collaborative cases, I can't remember a single case where requested  information was withheld. That may be because the people choosing Collaborative are already willing to follow the rules and be cooperative.  In addition, the professionals are careful at the outset to not start up a case where someone likely won't abide by the rules and practices of Collaborative Law.
Bottom Line:  Don't worry about whether information will be provided.  It hasn't been a problem so far.

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