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Myths About Collaborative Law

Sept. 13, 2021

When people are considering whether to stay married or get divorced, they will often do research on what their options are. Some people think the only choice is litigation, while others will dig a little deeper. Unfortunately, they need to be careful where they dig.

If you are investigating your options, please look up information provided by experienced and active Collaborative lawyers in your area.

We occasionally spend some time looking on the Internet to see what people are writing about Collaborative Law. Sadly, there are many misstatements about different aspects of the process. The mistakes seem to often be on web sites by non-Collaborative lawyers who write a little about the topic, probably to show up in another area for search results. Sometimes, their conclusion is that Collaborative Law is not such a great process.

In other cases, they lure potential clients in and then explain that Collaborative is good, but it wouldn't be appropriate for their case.

While I certainly wouldn't want an attorney to have to do a Collaborative case if he or she didn't want to, I do think we should keep the facts straight when explaining the process to the general public.

Here are three common misconceptions that are presented about Collaborative Law.

1. It just works for the small group of people getting divorced who get along well. Actually, while it works well in the easy cases, it's also very helpful for people who don't get along well.

There are many reasons why people choose the Collaborative process. They may value the privacy, or the power to make their own decisions, or the control over the scheduling, or the creativity permitted, or the assistance of a neutral financial professional or mental health professional.

People with those interests may not get along, but they see the value in having a private process that allows the parties to control the process so they create a custom solution for their situation.

2. The Collaborative Law process can only work if both parties trust each other. That sounds like common sense, but it's not. There are almost no divorces where both parties trust each other. Lack of trust may be there for different reasons, but it is present in most divorces. So how can we do Collaborative cases without trust? We follow the old advice of “Trust but verify” just like we do in litigation. But with some additional safeguards not found in litigation. We have a neutral financial advisor working for both parties who reviews all the finances. In addition, part of the Participation Agreement everyone signs obligates both parties and both attorneys to open, honest and transparent. Everyone is also under an obligation to correct mistakes. There are a lot more sets of eyes watching the whole process than there are in litigation.

3. The Collaborative rules remove the right to have a trial. That's not true either. If the process breaks down or one or both of the parties want to go to trial, the parties can have a trial, once they hire new attorneys. In reality, trials are about the last resort for either side. Most Judges will require the parties to attend mediation before they go to trial, and that will usually lead to settlement. Very few people actually want to go to trial where they leave everything up to the Judge. Most people prefer to decide for themselves how their finances and children will be handled.

There are other misstatements I see regularly when I look on the Internet, but these are some of the more frequent and relevant mistakes.

If you are seriously looking for information about your options, do yourself a favor and start by looking for information from an experienced Collaborative lawyer who actually handles Collaborative cases.