At the very outset of the collaborative divorce process, both attorneys pledge in writing not to go to court under any circumstances. Indeed, both of the collaborative lawyers pledge to withdraw should one party become dissatisfied, threaten to go to court, or if settlement cannot be achieved.
On the surface, these pledges would appear to foster the best interests of the divorcing couple. However, it also creates a singular objective, namely, settlement. Any and all other options short of settlement are unacceptable, meaning that the attorneys are not only interested in settlement – as are most mediators and even some adversarial lawyers – but are totally invested, indeed driven, by it! After all, under this pledge both attorneys are out of a job if one party becomes dissatisfied with the collaborative process, threatens litigation, or if settlement negotiations reach an impasse.
It thus seems reasonable to ask and be concerned about whether this overriding commitment to settlement actually serves the best interests of collaborative clients. For instance, to what length will one or both of the collaborative attorneys go to achieve settlement – and carve another “settled” notch in their belts? Might this pledge consciously or unconsciously influence how an attorney communicates with or behaves toward his or her client? Might it also influence how the attorneys interact with each other? And, might it affect how many of a client’s rights and interests one or both attorneys might be willing to sacrifice to achieve settlement?
In collaborative divorce, “the lawyer is not a partisan, as in traditional negotiation, and is not a neutral, as a mediator is required to be. S/he is something else, a role that is ill-defined and difficult to determine.1 However, the facts are that all lawyers are trained into an adversarial system and many collaborative lawyers spent years as ardent trial attorneys. Can (or should) clients trust that both attorneys have the ability and self-awareness to overcome the role confusion inherent in the collaborative divorce process?
One might also ask and be concerned about whether the role confusion intrinsic to collaborative divorce may actually leave a client feeling less, rather than more, empowered. Say, for example, a client chose collaborative divorce so as to have an attorney negotiate for him or her. It seems unlikely that that same client will have the ability to speak up should he or she believe that his or her attorney has slipped into an adversarial role.
Confidentiality of communication is the bedrock of the traditional attorney-client relationship. However, most collaborative contracts that clients sign are ambiguous about the extent to which this confidentiality must be preserved, thus increasing the likelihood that one or both attorneys might disregard it for the sake of collaboration and settlement.
As compared to the typical fees for two trial lawyers, collaborative divorce is likely to be economical. However, at best, collaborative divorce involves four-way communication – and perhaps as much as five- or six-way communication if independent experts such as psychologists, accountants, and appraisers are added to the “team.” Furthermore, collaborative contracts allow the attorneys and other professionals to communicate amongst themselves whenever they deem it appropriate, raising additional concerns about cost and economy.
In the event that the collaborative process proves unsuccessful, the clients alone bear the additional costs – financial and psychological – of starting all over again with two trial lawyers and new experts. Should not anyone considering collaborative divorce be very concerned about the possibility of having no choice but to agree to an unsatisfactory settlement only because he or she can’t afford to start anew?
Divorce mediation involves only three-way communication. Many mediators have backgrounds not only in law, but also in psychology and/or business. Most mediators provide their clients with a list of select attorneys and other professionals who are willing to act as mediation consultants on an hourly, as-needed basis. Many mediators prepare comprehensive settlement agreements, with each client deciding whether or not to have it reviewed by an attorney. It therefore stands to reason that a mediated divorce is likely to be far less costly than a collaborative divorce.
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Frequently Asked Questions about Divorce Mediation