Monday, February 15, 2016

Misinformation About Collaborative Law

When people are considering whether to stay married or get divorced, they will often do research on what their options are.  Some people think the only choice is litigation, while others will dig a little deeper.  Unfortunately, they need to be careful where they dig.

If you are investigating your options, please spend time to look up information provided by experienced and active Collaborative lawyers.  I occasionally spend some time looking on the Internet to see what people are writing about Collaborative Law.  Sadly, there are many misstatements about different aspects of the process. The mistakes seem to always be on web sites by non-Collaborative lawyers who write a little about the topic, probably to show up in another area for search results. Generally, their conclusion is that Collaborative Law is not such a great process.

While I certainly wouldn't want an attorney to have to do a Collaborative case if he or she didn't want to, I do thing we should keep the facts straight when explaining our views to the general public.  Here are three common misconceptions that are presented about Collaborative Law.

1.  It just works for the small group of people getting divorced who get along well. Actually, while it works well in the easy cases,  it's also very helpful for people who don't get along well.

There are many reasons why people choose the Collaborative process.  They may value the privacy, or the power to make their own decisions, or the control over the scheduling, or the creativity permitted, or the assistance of a neutral financial professional or mental health professional.

People with those interests may not get along, but they see the value in the process and they see how the mental health professional keeps everyone working together effectively.

2.  If the Collaborative Law process breaks down, you can't use the documents and information that was gathered in the Collaborative case.  That's not true.  While  statements and communications are protected, the documents and agreements produced can be kept and used as the parties finish off the case in litigation.  The result:  emails and statements made at meetings are confidential and can't the used in litigation, but spreadsheets created and the underlying documents supporting them can be used.

That means that it's not a total loss, but still the parties have to slow down and go to court to finish what they were unable to agree upon. One of the main reasons why Collaborative Law usually works is that the parties don't want the expense of hiring new attorneys or the delay of waiting 30 days while everyone gets started again.

3.  The Collaborative rules remove the right to have a trial.  That's not true either.  If the process breaks down or one or both of the parties want to go to trial, the parties can have a trial, once they hire new attorneys.  In reality, trials are about the last resort for either side.  Most Judges will require the parties to attend mediation before they go to trial, and that will usually lead to settlement.  Very few people actually want to go to trial where they leave everything up to the Judge.  Most people prefer to decide for themselves how their finances and children will be handled.

There are other misstatements I see regularly when I look on the Internet, but these are some of the more frequent and relevant mistakes.

If you are seriously looking for information about your options, do yourself a favor and start by looking for information from an experienced Collaborative lawyer who actually handles Collaborative cases. 

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