Collaborative Law – How It Works and Why Progressive Divorce is Preferable
The Matrimonial Strategist ™, Volume XX, Number 6
Collaborative Law is one approach to non-litigated dispute resolution now piloted in a number of States including Ohio, California and Minnesota. The concept was likewise initiated in New Jersey in 1998 by the Collaborative Family Institute, LLC, following research and development dating back to the mid-1980s.
At the heart of these earlier initiatives is a mutual recusal pact, whereby collaborative lawyers and parties covenant to resolve their matter without recourse to litigation. Subsequently, if the collaboration fails and litigation becomes necessary, both attorneys are disqualified, leaving the parties to start from scratch with new legal counsel.
Furthermore, collaborative law may also take a multi-disciplinary team approach to dispute resolution, i.e., one that uses several nonlawyer professionals throughout the process. For example, the “team” might include two mental health professionals, a child specialist and a financial expert.
If this sounds like a lot to swallow and even more to risk, you are not alone. While the recusal pact – entered into ab initio – certainly has its benefits in certain situations, it would seem irresponsible to require parties to enter into such a pact at the onset. Further development of the case might disclose that it is either unnecessary or otherwise inadvisable. Most proponents of Collaborative Law are insistent on the recusal pact at the onset.
In fact, many collaborative law agreements extend the disqualification provisions to all jointly retained experts, including work product. This poses an extremely coercive element where sinking costs have accumulated, and where considerable funding would be sacrificed should bargaining ultimately break down. There are times, however, where bargaining should be allowed to freely break down. The Progressive Divorce approach honors these concerns by reserving this commitment for later in the engagement, if at all.
The second major criticism involves the multi-disciplinary team approach. One earlier collaborative law model included two divorce coaches and two attorneys, as well as a jointly retained child expert, fiscal expert, arbitrator and case manager. Such an arrangement is baffling when the liquidity of the average divorcing family is compared with the cumulative hourly rates of the professionals involved in this approach. Even if cost were no consideration, ad hoc multi-disciplinary teams are notoriously conflict ridden absent proper development and structure. Finally, to require a divorcing couple to retain so many professionals right out of the gate is akin to asking one person to arrange for a move from six personal residences all at once.
The third major criticism of collaborative law s that too much effort is focused on process and not enough on results. The outcome must justify the process, and progress must be tracked in terms of outcome. Budgeting and time management are impossible otherwise.