Frequently Asked Questions:
1. How can I interest my spouse in the Collaborative Divorce process?
Tell your spouse that your marriage has been important, and you want to handle your divorce in a way that avoids unnecessary damage to your family. Tell your spouse that you are interested in a collaborative, win-win conflict resolution. Share materials with your spouse such as this website and other materials available from each RMCLP member that discuss Collaborative Divorce. Encourage your spouse to select counsel who has experience and training in Collaborative Law and who works effectively with your own lawyer. Lawyers who trust one another are an excellent predictor of success in dispute resolution.
2. How does the cost of Collaborative Divorce compare with the cost of litigation?
Litigation is, quite simply, the typically the most expensive way of resolving a dispute. It is common for litigated divorces to begin with a motion for temporary support. The result is exactly that—a temporary order, not any final resolution of any issues. It is common for a single temporary Orders motion and hearing to cost as much or more in lawyers’ fees as it costs for an entire Collaborative Law representation. And that’s only the beginning of the litigation process, which can go for a year or more, involve extensive legal maneuvering by the attorneys, more hearings, the hiring of experts to support the attorneys’ arguments, and finally a lengthy trial. The Collaborative Law process can move quickly and avoid most, if not all, of these legal entanglements.
The costs associated with the collaborative process will vary depending on a variety of factors, including the complexity of the issues, the number of professionals involved, and the time it takes the collaborative team to work though the issues in a quality way that is in the parties’ (and their children’s) best interests.
3. How is Collaborative Divorce different from the traditional adversarial divorce process?
• In Collaborative Divorce, there is an open, honest exchange of information. Neither party takes advantage of the miscalculations nor mistakes of the others, but instead identifies and corrects them.
• In Collaborative Divorce, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process.
• Both parties in Collaborative Divorce use the same financial advisors, mental health consultants, appraisers, and other consultants, instead of needing opposing experts.
• In Collaborative Divorce, a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.
• In Collaborative Divorce, the lawyers must guide the process to settlement or withdraw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or a trial is held.
• In Collaborative Divorce, there is parity of payment to each lawyer so that neither party is at a disadvantage because of the lack of funds, a frequent problem in adversarial litigation.
4. What happens if one side or the other does play “hide the ball,” or is dishonest in some way, or misuses the Collaborative Divorce process to take advantage of the other party?
That can happen. There are no guarantees that a participant in the Collaborative Divorce process will not act in bad faith; just as there also are no guarantees in the litigation process. But you will be represented by a lawyer who will pay close attention to this issue. If she determines your spouse is being dishonest, she will make sure that both you and your spouse’s attorney know immediately. You can end the process and go to court. Also, the collaborative agreement requires a lawyer to withdraw upon becoming aware that her client is being dishonest, or participating in the process in bad faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw and will not continue to represent the client. The same is true if the client fails to keep agreements made during the course of negotiations; for instance, an agreement to consult a vocational counselor, or an agreement to engage in joint parenting counseling.
5. My lawyer says she settles most of her cases. How is collaborative divorce different from what she does when she settles cases in a Conventional Law practice?
Most litigated divorce cases settle figuratively, if not literally, “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused by the parties or their lawyers taking extreme positions on various issues. Decisions may have been made by the judge earlier in the case, which favored one party over the other, or which created difficulties for both. The final settlement is reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to decide based on the positions the lawyers take. Nothing could be more different from what happens in a collaborative law settlement. The Collaborative Law process is designed solely to make it possible for creative, respectful collective problem solving by the only people who will have to live with the decisions – you and your spouse. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in settlements based on litigation.
6. What if my spouse and I can reach agreement on almost everything, but there are one or two issues on which we cannot agree? Would we have to end the Collaborative Divorce process, lose our collaborative lawyers, and go to court?
In that situation it is possible, if everyone agrees (both lawyers and both clients), to submit only those one or two issues for a decision by a “private judge” chosen by the parties. This is done with important limitations and safeguards built in, so that the integrity of the Collaborative Law process is not undermined. Everyone must agree that the good faith atmosphere of the Collaborative Law process would not be damaged by submitting the issues for third party decision, and everyone must agree on the issues and on who will be the decision maker.
7. Is Collaborative Divorce the best choice for me?
It isn’t for every person, or every case, or even every lawyer. However, it is worth considering if some or all of these principles and objectives ring true for you:
a) You want a civilized, respectful resolution of the issues.
b) The relationships you have created during your marriage are important to your future, including friends, extended family, and even your spouse.
c) You and your spouse will continue to parent your children together, and you want the best co-parenting relationship possible.
d) You want to protect your children from the harm associated with a conflicted, litigated divorce between their parents.
e) You have ethical or spiritual beliefs that place a high value on taking personal responsibility for handling conflicts with integrity.
f) You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.
g) You value control and personal decision making and do not want to hand over decisions about restructuring your financial and parenting arrangements to a judge who may not realize what is important about your family.
h) You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
i) You place as much or more value on your children and the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.
l) You understand that conflict resolution with integrity involves not only achieving your own goals, but also finding a way to achieve the reasonable goals of the other person.
l) You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge—fixing the problem rather than fixing blame.
8. Why is Collaborative Divorce such an effective settlement process?
Because the collaborative lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a “paradigm shift.” Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families.
Collaborative lawyers do not act as hired guns, nor do they take advantage of mistakes inadvertently made by the other side, nor do they threaten, or insult, or focus on the negative either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in.
Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the Collaborative Law process.
Collaborative Divorce offers a greater potential for creative problem solving than does either mediation or litigation, in that only collaborative law puts two lawyers in the same room pulling in the same direction with both clients to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they generally pull in opposite directions. No matter how good the lawyers may be for their own clients, they cannot succeed as collaborative lawyers unless they also can find solutions to the other party’s problems that both clients find satisfactory. This is the special characteristic of Collaborative Law that is found in no other dispute resolution process.