Collaborative Pros & Cons
One of the most important advantages of collaborative divorce is the opportunity to create a healthy co-parenting relationship, so that ultimately you can work in harmony with your ex to protect children’s interests. Sometimes, clients develop a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, parents need help transitioning from one household to two households with minimal harm to the family. Neutral Divorce Facilitators help develop effective communication and create a parenting plan. The Neutral Child Specialist can give your children a safe place to talk about the changes in your family, as well as offer insights to help you develop the best plan for your children. The Collaborative Attorneys assist as needed in negotiating an agreement and preparing the necessary final legal documents.
Each case is unique, but typically, the collaborative approach costs one-third to one-half as much as in court. After all, there are no court motions to prepare, no court hearings to conduct, and discovery is provided voluntarily and fully instead of being extracted through expensive legal processes.
If you cannot reach an agreement, you can explore other settlement options, such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow you to stay within the collaborative framework. If court hearings are required, the Collaborative Attorneys withdraw, and each party hires a new attorney for trial. The Collaborative Attorney will transfer the information gathered and will assist the trial attorney in the transition.
Litigation attorneys are typically trained to approach cases with the option to go to court as a last resort. “Going to court” often becomes a weapon or threat that derails communication, rather than helping spouses settle. Since settlement is not the focus, cases often do not settle until the parties are “at the courthouse steps,” costing you substantial attorney’s fees and depleting your emotional resources.
Agreeing not to go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial. This reduces the tendency to use the threat of court as a weapon.
This also further underscores your attorneys’ commitment to achieve a resolution: after all, they must withdraw and lose their clients if the process fails.
The assurance that neither attorney is “building a case” against the other party while they are participating in the negotiation process provides the parties with attorneys trained to work together to protect the rights of each party while keeping the commitment to settle. Each side has professional legal advice and advocacy available at all times during the Collaborative process. When particularly difficult issues arise, the Collaborative attorneys and other team members help keep the process focused on finding a resolution rather than preparing for a potential battle.
In the first meeting, you will each sign a participation agreement, stating that the communications during the collaborative process will not be admissible in court.
Collaborative vs. Other Options
In mediation, the parties meet with an impartial third party to reach a compromise out of court. The mediator, who may be a lawyer, cannot give either of you legal advice or advocate for either side. If one side or the other becomes unreasonable or stubborn, lacks negotiating skill, or is emotionally charged, the mediation can become unbalanced. As the mediator works to get the process “unstuck,” he or she can be viewed as biased by one side or the other. If the mediator does not find a way to deal with the problem, the mediation can break down or the final agreement can be unfair.
Collaborative divorce combines the positive qualities of litigation and mediation. As in litigation, each party has an independent attorney to advise and advocate. Drawing from mediation, the clients and their collaborative attorneys commit to share information openly and resolve differences without going to court. In addition, the clients can mutually agree to engage other professionals such as Child Specialists, Neutral Financial Professionals, Divorce Facilitators, vocational counselors or other neutral consultants to provide them with specialized assistance. The clients acknowledge that the best result for each of them will occur when they reach the best result for all of them.
If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation. In collaborative divorce, the parties agree to disqualify attorneys and other professionals from participating in litigation if collaborative divorce does not succeed.
Yes. Although disclosure is done informally, it must happen fully, promptly and voluntarily to ensure the parties are willing to be straightforward and avoid game-playing. Florida law requires full disclosure in all divorce cases and imposes serious penalties for hiding assets.
Collaborative: Right for Me?
Not at all. Anger is a natural response. In collaborative practice, you will receive support and guidance through strong feelings, such as grief and anger. In conventional litigated divorces, unresolved feelings often fuel fights over other issues such as child custody, support or property division. In collaborative practice, we help you learn to express emotions in a direct, but respectful way.
This website is an excellent resource to let your spouse know more about the process and professionals to contact for an initial interview. Or, your attorney can contact your spouse, explain collaborative divorce, and provide a list of local collaborative lawyers to contact. If your spouse already has an attorney, the attorneys can discuss whether to choose collaborative divorce.
How Collaborative Works
Yes. Each person retains his or her own collaborative attorney to advise and assist in negotiating an agreement on all issues. Your attorney informs you of your rights and gives you sound legal advice about your situation. Collaborative divorce attorneys make every effort not to aggravate the tensions that already exist between you. Their role is to create a safe environment for your assessment of options and negotiations for resolution.
Yes, you really need a collaboratively trained facilitator. Mental health professionals have the unique skills to help parties navigate the minefield of conflict. They will help you work out of the most rational part of your brain. That is not easy to do when you are in “fight or flight” mode as a result of the stress your conflict is creating. Collaborative facilitators are specially trained to enable you to bring the best you there is to the negotiating table. They add real value to the process, and your lawyer will advise you to employ such a professional.
Research has shown that divorce is one of the most stressful life events a person can face. It is a major life transition and can be a very disorienting experience. For most people, getting divorced involves loss on many levels. These can include loss of control, loss of a dream, loss of trust, loss of stability, loss of a best friend, loss of financial security, loss of connection to shared friends and community, and loss of identity as a married person, among others. Given this level of life disruption, powerful feelings of anger and grief about the end of the marriage are common. So are anxious thoughts about the future such as “Will I be okay?”
These thoughts and feelings are normal as divorcing couples go through this transition. Nonetheless, they can and often do hinder the divorce process. For example, one spouse’s anger at the other spouse may prompt an effort to retaliate. Fear of the unknown may cause them to stall the process. Grief about what has been lost may hamper their ability to visualize and move toward a different future. Many people feel ruled by their emotions at this time which can keep them from making sound decisions.
Unlike a therapist, the Neutral Facilitator does not delve into understanding why a person feels as they do. The Neutral Facilitator helps manage and contain intense feelings during divorce so they do not interfere with decisions that may impact your children for many years to come.
The therapist helps you unpack your bags and examine and sort the contents. The Divorce Facilitator helps you carry your bags from one side of the street to the other.
The Facilitator also helps deal with clients’ and attorneys’ personality traits that can get in the way of settling the divorce. Collaboratively trained Facilitators are experts in helping to keep emotions and personalities from derailing your divorce process.
In theory, this makes great sense, but in practice, this is a recipe for disaster. This is like having a bad headache and waiting hours before taking a painkiller. The headache may be too intense at that point and not even respond to the painkiller.
Our experience has shown that when the Facilitator is called in after tensions have escalated, the divorcing couple is so distraught, hurt or distrustful that they may no longer be able to succeed. Facilitators can’t stop a case from going south late in the game any more easily than brakes can stop a train that has built up speed and momentum. These cases might have had a very different outcome if Facilitators had been used from the start.
Ironically, although there is another paid professional working in the case, a Facilitator usually saves the client money because, unknowingly and all too often, clients treat their attorneys as their emotional and mental sounding boards. They talk to their Attorney about challenges and the dynamics with their spouse and, while some of this is pertinent to the outcome of the case, this is very expensive emotional support at the attorney’s annual rate! Also, while attorneys are sensitive to your emotion, they are not trained to help you with them.
Research has shown that collaborative cases generally cost significantly less than litigated cases. That said – every dispute is different. In collaborative cases, the parties can save money by completing tasks promptly, fully preparing for meetings. Unlike in litigation, you will see your professionals’ work firsthand and can better monitor cost than you could in a litigated case. Remember that the investment in high quality collaborative professionals pays off with a lasting, effective resolution.
The collaborative professionals set the tone for positive communication. People in a legal dispute often feel emotionally vulnerable and may not realize how their communication styles cause problems. The collaborative professionals help each client present interests and needs so they will be heard by the other participants. Meeting together can help everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.
Yes. Each client keeps the right to stop the collaborative process if it is not working well for her or him. It is in each person’s interest to act in a way that makes the process fair and considerate of the other party. Thus, in collaborative practice it is counter-productive to use tactics such as intimidation, withholding information or being uncooperative, because these tactics will simply cause the process to fall apart. When the process is stopped, either party may initiate court action and then the collaborative attorneys will withdraw. Though this option is available to you, we have found that most people become invested in the process and few want to withdraw.