Though I have advocated the use of the collaborative process in family law cases (for example, here, here, and here), it is only fair to note that there may be disadvantages to a collaborative law case. Jon Crouch over at The Family Law New Blog explores some of those potential disadvantages:
1. In litigation, you can use the timing and immense stress and fear of impending trials to get people to sign settlements they never would agree to if they actually had time to consider them.
2. In litigation, if you have deeper pockets or more outside support, you can often get everything you want by making the enemy deplete his war chest very early in the process, beginning with pendente lite hearings, depositions, discovery requests, discovery disputes and enforcement, pendente lite order enforcement, etc., until he’s completely out of money and has to unconditionally surrender.
It’s a lot harder to do that in collaborative because (a) it doesn’t cost anywhere near as much as litigation, and (b) when resources are unequal there’s usually an agreement on how to pay both clients’ costs.
Neither of those bothers me, but you could call them drawbacks of the collaborative process.
3. Conversely, one thing that DOES bother me about collaborative, is, what if one spouse uses up their entire war chest in a collaboration that fails, while the other spouse doesn’t? True, that is just as much of a problem, or more, in litigation or conventional divorce negotiation, but it still can be a challenge and you need to be thinking about how to prevent it in each collaborative case. Common ways to address it are having the costs of the process paid from marital assets or from the earning spouse’s income, or dividing some of the family’s undisputed assets early in the process.
As a note to Mr. Crouch’s first point, though the litigation process often forces you against a time-limit to make a decision, the collaborative process allows the parties to take the time to evaluate additional options. This may open up settlement ideas which would have otherwise been overlooked.
To Mr. Crouch’s second point, in Florida it is common for a court to order one rich spouse to pay the poor spouse’s interim attorney’s fees so that both parties can afford legal counsel. Accordingly, litigation does not really offer an advantage over collaboration when it comes to spreading the costs of attorneys’ fees.
As to Mr. Crouch’s third point, it is true that if the collaborative process does not work, then both parties will have to hire new attorneys and proceed with litigation. However, this can be a strong incentive for the parties to come together, as they simply do not want to have to hash out the process again, and this time in front of a judge rather than in the privacy of one of the attorney’s office.
But, if collaboration does fail, and a party has used up their “entire war chest,” then, once again a judge may order the better off spouse to pay a portion of the poorer spouse’s attorney fees.
Attorney Adam B. Cordover has completed advanced training in interdisciplinary collaborative law and is a member of the International Academy of Collaborative Professionals and the Collaborative Divorce Institute of Tampa Bay.