Thursday, October 9, 2008

Reading Around the Blogs: Collaborative Divorce

William Wilson has a very good post on collaborative divorce, So what is this collaborative law thing anyway?. I suggest that you read it in full. It is that informative. However, I do want to quote one paragraph:

If there is one thing that characterizes the traditional divorce model it’s this: If we can’t get an agreement, we’ll let the court decide. This option–being able to go to court–means parties can be unreasonable. “I’ll take my chances with the judge,” is a line familiar to many divorce attorneys, and it often follows a rejection of someone’s proposal.
Let me say that if you think you really want a judge to decide your case, then pay attention now. Judges think that if both parties are unhappy with their decision then they have done their jobs right. Understand? The judge may give you less than you got in the agreement. Remember, too, that it just cost you more to get a judgment you are even less happy with than the rejected agreement.

Speaking of Mr. Williams and South Ben, his post Indiana and Michigan lawyers, others receive collaborative law training indicates that they are doing more on this subject up north than we are doing in my area. More power to them. I have maintained on this blog that the biggest obstacle to expanding collaborative divorce is education - education of both clients and lawyers.

Now from Texas, The Top 5 Fears about Collaborative Law* *and why you shouldn't worry!
  1. The process won't work and I will have to hire another attorney, and that's expensive.
  2. The other party will hide information.
  3. The process will be too slow.
  4. Collaborative Law is too expensive.
  5. 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.

I saved that point to quote in full to make the point that collaborative divorce is a tool. As with any tool, it fits a purpose. The following comes from the Oregon Divorce Blog's Which divorce model is best for me?. I think it make even clearer what cases cannot use the collaborative model.

There are costs and benefits to proceeding under any model. In a perfect world, the collaborative model would be the most cost-effective and most effective at resolving disputes in a manner that benefits all parties. If your case involves physical or extreme emotional abuse, drug or alcohol abuse by one parent so severe that parent cannot understand the harm it has caused to kids or that parent is not able or willing to put up with supervision and requirements, if one party is unable to financially move forward and the other party will not cooperate, or if it is impossible for the parties to trust each other, then a traditional litigation model will be necessary to resolve your dispute.

A good attorney who is trained and experienced in both models can assist you, not only in choosing the best model for you, but also, in making sure that you do not make the wrong choice. The collaborative model can also be used to assist parties in domestic partnership dissolutions and custody disputes as well as in a divorce.

May own feelings about collaborative divorce is that this is the future for the majority of divorce cases. Where it will not apply are those cases of abuse or other bad acts make collaboration impossible. Maybe a war analogy is not totally inappropriate here: where we could talk with the Soviets during the Cold War, we could not even think of speakign with the Japanese on December 8, 1941. The former cases can be collaborated on while the others will never be.

I also maintain that collaborative divorce will not increase unless and until the public understands its purposes and benefits.

I have not archived any of my earlier posts as being specifically collaborative divorce. If you use the search box at the top of the page with the terms collaborative divorce, they should all turn up.

No comments: