Monday, September 1, 2008

The Top 5 Fears about Collaborative Law*

*and why you shouldn't worry!

Fears often have a major impact on how people make decisions. In an ideal world, decisions would follow a careful analysis of a situation and would include a consideration of the possible costs and benefits of a course of action. Unfortunately, such analysis takes time and effort, and many people succumb to the easier and quicker solution of just reacting to fears and assumptions that are readily available to justify bad choices. Here are some of the fears that must be dealt with when people consider using Collaborative Law to resolve disputes. These are the top 5 fears I have heard about over the past eight years. Other attorneys may have slightly different lists.

1. The process won't work and I will have to hire another attorney, and that's expensive. To me, that concern is the best incentive for the Collaborative Law process to work. Once in the Collaborative process, attorneys may not go to court on the case, except to prove up an agreement. In litigated cases, there's almost always negotiations and most cases settle at some point, but there's always the threat to take the other party to court if he or she doesn't agree to do what the spouse wants done. There is often a power imbalance in negotiations in litigation cases, and the threat to go to court often forces the other side to do something he or she might not want to do. Since both parties would have to hire new attorneys to go to court, the threat usually becomes a non-factor. Without the threat to go to court, the parties are forced to stay in the process and rely on creativity rather than force. The result is better agreements that both parties can feel good about.

2. The other party will hide information. Actually Collaborative Law, using a neutral financial professsional (FP) and a neutral mental health professional (MHP), provides better oversight than most litigation. The parties start out promising to honestly and voluntarily share information. In contrast to litigation, both attorneys assume an obligation to assure that all relevant information is provided to each side. The financial expert reviews the records, can seek additional records or explanations and analyzes the information received. The analysis is shared with both sides and options are generated together. The neutral MHP also helps assure that all relevant facts are provided. With two attorneys and two other neutral experts involved, it would be hard to hide information during the process. Of course, no system is perfect and experienced family law attorneys are well aware of the extent and nature of deception which is often utilized in traditional litigation. At worst, there is no reason to believe that Collaborative Law would make it easier to hide information than litigation does. In reality, Collaborative Law provides many more safeguards.

3. The process will be too slow. First of all, a contested litigated divorce will often take a year or more (I have had some bad ones last 3-5 years). A Collaborative case will only move along as fast as its slowest party allows it to move, but Collaborative cases usually will resolve much more quickly than a litigated case, unless the parties want to do otherwise. I have had some cases slow down and last a year or more, but that was what the parties wanted to do. A couple of times, we took off for two or three months because there was about to be a wedding in the family and they didn't want the stress of the divorce to detract from the wedding. We have also slowed down a divorce because of housing needs or employment situations. On the other hand, in some cases, we are able to wrap them up right after the 60-day waiting period (for all divorces) is up.

4. Collaborative Law is too expensive. When we start talking about bringing in a financial expert and mental health expert, sometimes clients get nervous about the cost. That would be understandable if we planned to have both experts attend all meetings with both attorneys and the parties. In reality, there are few meetings when everyone is present. While we usually have the MHP attend the joint meetings with the attorneys and parties, the FP normally works directly with the parties in gathering information, discussing the needs and abilities of the parties and preparing budgets. The financial expert will also do some preparation alone. There will usually be one or more meetings with everyone present, but they are relatively streamlined because of the preparation done by the FP. In addition, we have found that the MHP is able to keep the joint meetings on track and we actually work more efficiently and effectively in the meetings. Also, we often have the mental health professional (or sometimes a child specialist) work separately with the parties to resolve any parenting issues. The result is an efficient process that uses the skills of neutral experts and actually involves somewhat less attorney time than a traditional litigated divorce.

5. The other party won't cooperate. While that can happen (it often happens in litigation), it rarely happens in Collaborative Law cases. Both attorneys screen their clients to make sure the clients understand their obligations under the Participation Agreement before it's signed. When a mental health professional is used, she or he can be helpful in avoiding or ending such lack of cooperation. The MHP's role is not to provide therapy, but she or he will work with the parties so that they are comfortable and feel safe in the process. Both parties face the same incentive to stay in the process and they can only do that by cooperating. Lack of cooperation has rarely been an issue in the Collaborative cases I have handled.

If you are considering whether to utilize Collaborative Law to help resolve a family law issue, please discuss your concerns with a qualified attorney who has been trained in Collaborative Law. The process will not work in every case, but a trained attorney with experience in Collaborative Law can help you decide if it would benefit you.

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