5 Myths About Collaborative Law.
Family Law litigators routinely criticize Collaborative Law as a viable option for families who have chosen to end their marriage. Here are their 5 most common complaints and and why they are wrong.
- If it does not work, you have to change lawyers and start all over: False. At the heart of the Collaborative process is the “exclusionary provision”. This means that if an impasse is reached during negotiations the Collaborative attorneys must withdraw and transition the matter to trial lawyers. This happens rarely. The exclusionary provision is essential to the functioning of the Collaborative process as it allows for a more complete, confidential and honest exchange of information and ideas. However, if an impasse is reached, all documents exchanged and agreements made in the Collaborative process will follow the parties to the trial lawyers. It is only the lawyers and other professionals who may be involved that can not follow the parties into litigation.
- You don’t have access to all of your legal options so won’t be protected. False. Trial lawyers only know how to use the court litigation process, which is the most expensive and inefficient way to resolve a dispute. Collaborative Law uses a different form of dispute resolution process called Interest Based Negotiation to resolve the problem. Interest Based Negotiation is a viable and accepted dispute resolution process that is at the heart of not only Collaborative Law, but also Mediation. It is used by lawyers, mediators and diplomats world wide. The trial lawyers just believe that the expensive and inefficient litigation process (which is all they know) is “better”; kind of like comparing apples and oranges!
- Collaborative Law involves too many professionals and is expensive. False. The Collaborative process utilizes a team approach by retaining neutral specialists to resolve the critical issues. The parties share this cost equally. Compared to the litigation process, where each party retains their own separate professionals, in addition to costs for court appointed Guardians when custody issues are involved, Collaborative Law, while not inexpensive, will be vastly less expensive that litigation.
- You cannot ensure that you have full financial disclosure. False. It is becoming increasingly difficult to “hide money” and assets. All financial records are stored electronically and a competent financial professional can trace just about any asset to its source. Unless a person is paid on a cash only basis, all assets can generally be identified and will be included in the parties financial estate.
- Your lawyer won’t “fight” to protect you. False. Most Collaborative attorneys will tell you they feel they can advocate more effectively for their client when in a Collaborative process. This is because the Collaborative process is designed to enable the parties to negotiate in a confidential, reasoned and respectful manner. This allows the lawyers to explore all options for settlement, probing to find common interests where agreements can be reached.
The Collaborative Law process is specifically designed to assist people to reach an agreement in a way that preserves their future relationship, their resources and their children’s emotional health. It is a more ethical way for lawyers to assist people through a very difficult and traumatic time in their lives.