I Quit: Why Leaving the Collaborative Law Process Is Difficult (By Design)
Throughout the divorce litigation process, clients will ask their attorneys what the chances of success are on a particular motion or position for an upcoming hearing. Without a crystal ball, it is extremely difficult for practitioners to tell clients what will happen, so practitioners are left relying on experience – and anecdotal evidence — to estimate what may happen. Every practitioner, however, after saying “you have a 50-50 shot at prevailing” is then left hoping he can meet the client’s expectations, and the advice he gave was accurate.
While that conversation happens in almost every case, the core concept — or interest — is easily determined: certainty. Clients are uncomfortable with litigation because a judge, master, or hearing officer —all of whom are disinterested third parties — are going to decide their fate, and carve up their lifetime savings.
One of the main benefits of collaborative law is certainty. In the collaborative law process, the professional team and the clients work together to meet the clients’ respective needs, and the process is not necessarily bound by the Divorce Code, which often times is an attempt to fit a square peg into a round hole. However, what happens when one party thinks her chances may be better in litigation? Or what happens when a friend of one of the parties tells that party her interim support, determined through the litigation process, was much higher than the number discussed at the last collaborative law session?
There are a myriad of reasons a party may try to leave the collaborative process, but it isn’t as easy as asking your attorney to draft a complaint in divorce and to move forward with litigation. Prior to entering into the collaborative law process, the parties, counsel, and the neutral coach (usually a mental health professional) will sign a participation agreement. Most participation agreements contain a paragraph titled Disqualification by Court Intervention, which provides the attorneys’ representation is limited to the collaborative process, and neither attorney can represent a party in a court proceeding. As a result, if the collaborative law process terminates, then all attorneys and consultants will be disqualified from engaging in the litigation process — whether as an attorney or a witness.
The reasoning behind the paragraph is important to the effectiveness of the collaborative law process. First, the disqualification language ensures everyone in the collaborative law process can be open to share their thoughts, and to work as a team. If the disqualification language did not exist, parties could use the collaborative law process to gather facts for litigation purposes. Second, the provision, along with others in standard participation agreements, provides incentive to continue with the process when the conversations are difficult. Again, if the disqualification language did not exist, either party could leave with his or her attorney to engage in litigation without delay or further cost to that party. With the language in place, the participants are left with the choice of addressing and compromising on a difficult subject (which will happen in litigation anyway), or to leave the process, hire a new attorney, work with the new attorney to gather documents or information, and then to begin the litigation process, which can take months (or years). The participation agreement, therefore, is a necessary tool to the effectiveness of the collaborative law process, and it helps create a problem-solving environment.
To learn more about this alternative dispute resolution process, contact the collaboratively trained attorneys at our law firm by filling out our online contact form or calling us at (413) 471-9000.
A certified collaborative lawyer, Robert D. Raver’s practice as an associate attorney at Pollock Begg Komar Glasser & Vertz LLC spans all aspects of matrimonial law. A natural writer and lecturer, Bob is frequently sought after to write and editor articles, case notes, training materials and lectures alongside his peers. Founding Partners David S. Pollock and Daniel H. Glasser have both tapped Bob to co-author different materials on tax aspects as well as ethics materials for family law.