Collaborative Law vs. Litigation

You Have Choices in Collaborative Law

You know you want to end your marriage, but you don’t know what to do next.  The first step in deciding what divorce process is right for you. The collaborative process you choose will have a powerful effect on the outcome, cost and timeframe involved in finalizing your divorce. Below are some of the different process choices you have:

“Kitchen Table”

The spouses sit down and solve the problem themselves with no outside assistance. Sometimes they will work together to draft and file court papers, or they use one of the methods below.

Coaching/Unbundled Legal Services

The client in this model acts as a “general contractor” and takes primary responsibility for the case.  The lawyer is hired on an “as needed” basis for help filling out forms, resolving specific issues, drafting papers, appearing at a hearing, and so forth.  The lawyer doesn’t take over responsibility for managing the case, and the client only pays for the help needed.

Mediation

A neutral person, who may be a lawyer, a mental health professional, or simply someone with an interest in mediation, acts as the mediator for the parties.  In mediation, the parties create the solution with the help of the mediator who will facilitate better communication and creative problem-solving. The mediator helps the parties reach an agreement, but does not give legal advice, and may or may not prepare the agreement.  Some mediators will process the case through the court (state law governs attorney mediators’ ability to file the court papers for the parties). Retaining your own lawyer for independent legal advice during mediation or at least before signing the final agreement is generally wise.

Arbitration & Private Judges

In some states, clients and their lawyers can choose private judges or arbitrators who will be given the power to make certain decisions for the clients as an alternative to taking the case into the public courts.  This option can partially reduce the financial costs and delays associated with litigation in the public courts. The financial and emotional costs may remain high, however, because positions are polarized and the lawyers have no particular commitment to settlement as the preferred goal, and continue to represent the client whether the case settles or goes to trial.

Collaborative Law

Each person retains his or her own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues.  All negotiations take place in “four-way” settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Legal advice is an integral part of the process, but all the decisions are made by the clients.  The lawyers generally prepare and process all the papers required by the court once an agreement is made.

Conventional Representation

Each person hires a lawyer.  The lawyer may be good at settling cases, in which case they work toward that goal at the same time that they prepare the case for the possibility of trial.  If the lawyers are not particularly good at, or interested in, settling the case all lawyers’ efforts are aimed solely at preparing for trial. Either way, the pacing and objectives of the legal representation tend to be dictated by what happens in court.  Cases handled this way generally involve higher legal fees, and take longer to complete, than collaborative law cases or mediated cases.

“War”

One or more parties are motivated primarily by strong emotional (fear, anger, guilt, etc.) and as a consequence, the parties take extreme, black and white positions and look to the courts for revenge or validation.  Reasonable accommodations are not made. The attorneys often function as “alter egos” for their clients instead of counseling the clients toward sensible solutions. This is the costliest form of dispute resolution, emotionally and financially.  It is always destructive for the children involved. Such cases can drag on for many years. Few clients report satisfaction with the outcome of cases handled this way, regardless of who won.

Why Collaborative Law?

Collaborative divorce is different.  Unlike an uncontested divorce, the spouses don’t agree.  Unlike a litigated divorce, the spouses don’t want a judge to decide. After all, most judges say that if both parties are unhappy then it was the right decision. In a collaborative divorce, the spouses agree that they want to retain control of the process and the outcome, and they want to ensure that their attorneys are on the same page.

If a case goes to trial, the attorney will make far more money in hourly fees than if it settles. So, do you trust that your attorney is negotiating in your best interest at a mediation or settlement conference?  Even if your attorney is on the same page as you regarding the strategy, in a traditional case the court process controls. That means that your attorney must simultaneously “prepare for war while working toward peace”.  You are footing the bill for those preparations.

In a collaborative law case, the parties and their attorneys sign an agreement that disqualifies the attorneys from representing their clients if the case enters litigated court proceedings.  That removes the inherent conflict of interest between an attorney’s personal financial interests and their client’s desire to resolve the case outside of court. The agreement also sets out the parameters for sharing of information transparently and fairly, which allows the couple to make informed decisions without the traditional and costly discovery process.

In traditional cases, if outside advice is needed each party hires their expert to provide an evaluation and testify as a witness if there is a trial. In a collaborative law case, when additional help is needed, a joint neutral expert is brought on to the team with the costs shared equitably as agreed by the parties. 

Property division can be a complex area where outside help can reduce costs by helping the parties avoid financial pitfalls.  Property division is deciding who gets what assets and debts in light of spousal support and future incomes so that the division is fair just and equitable. You could have your attorney throw together a spreadsheet, but the joke goes that if attorneys were good at math, they’d have gone to med school.  We love spreadsheets at Human Alchemy, but we care more about empowering our clients with the knowledge they need to make agreements that they want to live with many years after their divorce is final.

When financial questions arise, a couple can bring in a Certified Divorce Financial Analysis or Planner (often a CPA or MBA with specialized training in the financial aspects of a divorce). With a CDFA or CDFP, a couple can craft an agreement that looks at the appreciation, depreciation, and tax consequence of the property division in light of their projected budgets crafted with the help of that same expert.

A parenting coach (aka child therapist often with mediation training) can be brought on board to help the couple create a parenting plan that draws on the strengths of each parent and is optimized for the developmental needs of the child(ren).

A divorce facilitator (usually a marital counselor or therapist) can coach the couple through the process of emotionally untangling their marriage while smoothing the friction points and removing roadblocks that arise during the divorce process. A divorce facilitator is to divorce what a marriage counselor is to reconciliation. Both help the couple embark on a new path, but with a divorce facilitator the paths diverge rather than merge.

Not all couples will need or want to bring in a neutral expert.  With the collaborative law process, you know that help is available when and to the extent that you need it, so that you can craft agreements empowered with the information you need.

Contact Our Collaborative Law Attorney Today to Discuss Your Options

If you are contemplating a divorce, just remember that you have choices.  Deciding on the process option that best suits the needs of your family is your first step in taking control of your divorce. If you live in Washington State or Oregon, you fortunately have an excellent family law firm, Human Alchemy, within easy reach. Not only does Human Alchemy, with offices in Vancouver and Portland, have an impeccable reputation for successfully handling even complex divorces, its founding attorney, Leah Watson, is widely known as a compassionate person with a long track record of helping families through successful collaborative divorces.