Potential Disadvantages of Collaborative Law

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.

To learn more about collaborative law, call The Law Firm of Adam B. Cordover at (813) 443-0615 or fill out our contact form.

About Adam B. Cordover, Attorney-at-Law

Family Diplomacy is dedicated to helping clients restructure their families privately and respectfully. We practice exclusively in out-of-court dispute resolution, with a focus on collaborative divorce and family law, mediation, direct negotiations, and unbundled legal services. We maintain this out-of-court practice because we strongly believe that family disputes should be resolved in a private conference room, not in a hostile and public courtroom environment. This unique perspective on family law stems back to Adam B. Cordover’s experience studying International Affairs in Washington, D.C., and abroad. Adam had the rare opportunity to work closely with ambassadors and diplomats from war-torn regions around the world. He traveled around the globe, learning from diplomatic leaders as they applied dispute resolution techniques to tackle seemingly impossible conflicts. It dawned on him: If these techniques can work in the complex world of International Relations, why not Domestic Relations and Family Law? This realization lead Adam to create an exclusively out-of-court practice and to bring a more peacemaking approach to family law. In his previous role as a litigation attorney, Adam witnessed parties experience the negative emotional and financial effects that long, drawn out divorce battles can have on families. As a result, Adam has become a strong proponent of the Collaborative Process, where a structure is put in place so that life’s hardest moments do not have to be any more difficult than necessary. A thought leader in the international collaborative law community, Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida). Adam has been featured in or interviewed about collaborative practice by the Tampa Bay Times, Tampa Tribune, Orlando Sentinel, Miami Herald, Tampa Bay Business Journal, Florida Bar News, NBC, Fox 13, Bay News 9, ABC Action News, The World of Collaborative Practice Magazine, and Spirit FM 90.5. Adam regularly speaks at professional and civic organizations locally and internationally regarding the collaborative process. Adam B. Cordover is president of Next Generation Divorce, a 501(c)(3) and Florida’s largest interdisciplinary collaborative practice group with member attorneys, mental health professionals, and financial professionals throughout Hillsborough, Pinellas, Pasco, Sarasota, and Manatee Counties. Adam is also on the Executive Board and co-chair of the Research Committee of the Collaborative Family Law Council of Florida. Further, Adam is a graduate of the inaugural class of the Leadership Academy of the International Academy of Collaborative Professionals. You can learn more about us and our services at www.FamilyDiplomacy.com. Attorney Adam B. Cordover is admitted to the Florida Bar and the United States District Court, Middle District of Florida. His office is located at 412 East Madison Street, Suite 824, Tampa, Florida 33602.
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One Response to Potential Disadvantages of Collaborative Law

  1. very informative post! Thank you for sharing with us.

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