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Collaborative Divorce: Discussion and Criticism

by Greg Nugent

Let me begin by saying, I am not a practitioner of collaborative divorce law.  I have been invited to train in that discipline but have so far taken a pass.   There are many dedicated, hard-working professionals who promote and participate in collaborative law as an alternative to standard mediation or contested litigation.  Many tell me that when it works, it can be a transformative experience for the parties.  Still, I can’t help but wonder if collaborative law is being foisted on people who should not be in the process.  For the process to work, the parties should be civil, open, honest and cooperative, qualities not typical to many divorcing parties (at least at the outset). Put another way, it seems to me that collaborative law, by definition, is something designed for a very small and discreet segment of the divorcing population because those few are people who trust, communicate and fully disclose pertinent information at the outset.  This may be a great over-generalization but, if a divorcing couple lived these ideals during the marriage, why on earth would they be getting a divorce now?  Beyond that, the process sounds like an expensive one which would be contrary to the goal of reducing costs by avoiding litigation.

The process typically begins with parties who engage collaboratively trained attorneys. Sometimes it begins with one party retaining such a professional while the other is encouraged to hire someone who the first attorney feels they can deal with.  The jeopardy to independence is self-evident.  From there, if children are involved, parent “coaches” are hired for each party.  In addition, child custody experts can be hired to guide the parties toward a custody settlement.  Financial experts can be brought into the process to help the parties work through accounting, finance and tax issues.  If one of the parties owns a business, valuation experts need to be enlisted as well.  Of course, in litigation, all of these experts tend to appear anyway but at some point, the savings may not be as great as the parties originally budgeted for.

Another consideration -- once the collaborative process ends, then what?  If alimony, child support or custody need to be modified in the future because circumstances have changed, it seems to me that the lawyers and experts have to be rounded up, rehired and set to work once again.  One would hope that after coming out of a divorce, the parties would be better equipped to handle these issues on their own – unless they became too dependent on the collaborative process the first time around.

Not being a collaborative practitioner, I tend to hear about it from parties who tried collaborative divorce and had a bad feeling about it, whether it concluded with a settlement or not. What has been played back to me -- the hallmark of the collaborative process is open communication and complete disclosure. But what if a participant is not living up to that standard in the process? There is no enforcement arm of the process. If a participant feels like the other side is not revealing everything, they are stuck. They have invested significant time and money in the process. The attorneys are invested in a successful outcome but this feels like a compromise of their devotion to their client. And worst of all, if the collaborative process fails, each side must retain new lawyers for litigation. Beyond the lost time and money, selecting a family lawyer is a uniquely personal endeavor. During the course of the representation, lawyers learn things about their clients that can be hard for the client to share. So after the failure of the process, a participant has to discard someone they may have grown to trust in favor of a new lawyer and a new trust building exercise.

I am sure there are many who disagree roundly with my thoughts. They are welcome to chime in. I am not saying I am right or wrong. I am simply sharing observations and criticisms so that people can form their own opinions about the wisdom of participating in the collaborative divorce process.