Friday, February 1, 2013

Should You Collaborate or Litigate?

If you are thinking about filing for divorce, you are probably considering who to hire and how to proceed.  Since you are reading this, you are probably thinking about using Collaborative Law.  If you investigate, some attorneys and other people may try to talk you out of using Collaborative Law and may try to tell you some reasons why it is a bad idea.

The following are common issues raised in discussing using Collaborative Law as a process to resolve Family Law issues, especially divorce.  Although Collaborative Law may not be a good fit for everyone, here's why you should still consider using it, even when one or more of these circumstances is a consideration.

1.Disqualification.  A fundamental component of Collaborative Law is the requirement that the attorneys and neutral experts must withdraw if the Collaborative process breaks down.  Then both parties must hire new attorneys in order to take the case to court.  While this is a drastic requirement, it is also one of the main reasons why the process works.  The attorneys, the experts and and the parties all have incentives to stay in the process and not just quit and turn everything over to the judge.  That encourages everyone to keep trying and to look for alternatives.  And that usually leads to a successful conclusion.

2. Can't trust your spouse.  Lack of trust is common to some extent in almost every divorce.  With Collaborative Law, you actually have more sets of eyes watching and making sure things are complete and accurate.  While there are no guarantees that both parties will be honest, that is also true in litigation.  In Collaboration, you will normally have two neutral experts helping and both attorneys are committed to making sure there are no mistakes and no one is taken advantage of.  That's more protection than you normally have in litigation.

3. Cost.  While Collaborative Law is not cheap, it is relatively cost effective.  In Collaborative, you will not have the numerous court appearances that are common in litigation.  There will be several joint meetings with the attorneys and other neutrals, and several "off-line" meetings where you will meet with a financial specialist or a child specialist to gather information and sometimes start to generate options. Those meetings are more focused and productive than most court appearances. In Collaborative, you will also not do formal written discovery, which is very expensive.  You will gather specific information that has a purpose.  In litigation, a great volume of information is often sought and produced, but much of  the information often has no real role in the litigation.  Way more information is exchanged in litigation than is really needed, and that costs money.

4. Spouse is controlling.  That is a big problem in litigation.  It is a problem in Collaborative Law cases as well, but there is help.  The mental health professional works with both parties to neutralize the actions of a spouse who may try to be controlling.  The financial professional helps off-set the controlling spouse if he/she tries to unfairly control the flow of information about the finances.  In addition, both attorneys work to together to stop any controlling behavior on any issue.  That type of broad effort is effective and is not available in litigation.

5. Domestic violence.  This can be a problem in any family law issue.  Not every case is appropriate for Collaborative Law, but there is no automatic disqualification for domestic violence.  With a neutral mental health professional involved throughout the process, there is a better chance of dealing with the situation in a constructive and safe manner.  An additional therapist or coach can be used for one or both parties.  Meetings can be run with flexibility that allows changes of length or location or other adjustments.

6. Spouse is crazy.  Again, this is frequently true in regular litigated cases.  Having a neutral therapist working with both parties is probably the best way of getting through the case and dealing with any emotional or personality problems that may exist.  In litigation, there's normally no one working in a similar capacity.  You are much better off dealing with a crazy spouse using Collaborative Law.  It's still not easy, but it's better.

All of these conditions make the case difficult and probably more expensive.  Collaborative Law does not make a case cheap or easy to resolve.   Collaborative gives you more flexibility and tools to work with, and you and your spouse get to create your own unique solution using a system you control.

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