What is different about Collaborative Law Divorce?

There are some key differences in the collaborative law divorce contract to traditional means of getting a divorce. In this section, they are described.

Confidentiality: You don’t have it unless you remember to ask for it.(Please see LINKS for Confidentiality ) This is exactly the opposite of a traditional client-lawyer relationship, where everything you say is confidential.  In a collaborative law divorce, you can call your lawyer and say “I’m really nervous that my wife will sue me in court.”, and they can then pass that message along to the attorney representing your wife. In fact, unless you clearly state explicitly that a communication is confidential, everything you say may be shared by the attorneys. This is often viewed as a form of collusion by critics of collaborative law divorce.  At a minimum, it can certainly lead to unintended communications passing between the attorneys that most people would assume are private by default.

UPDATE: Oct 2007: I've been informed that my statement above is incorrect, and that nothing in the CL contract can or does subvert statutes protecting a client of an attorney. The presentation in my links section says that the CL concepts and laws peacefull co-exist. But this did not seem to be true in my case, where my lawyer routinely told me things that my wife had told her attorney (and vica versa). So this is a confusing issue, but clearly represents some difference than the norm... Other sources in the links section indicate differences... If you know the answer - contribute to the Forums please!


The All or Nothing Clause: The collaborative law attorneys agree that they may not represent you in court and hence if the collaborative process fails in any way, the spouses seeking a divorce must completely start over and forfeit the time and expense of the “process” entirely(See Stipulation and Principles ). This is often sold as an incentive for the parties to finish in this “peaceful” setting, however it is also a sharp hook to keep clients on the line while the divorce drags on because the parties fear the alternative of starting over. The literature on CL conveys this as, “If the process fails, the lawyers are out of a job.” This tends to make it looks like the lawyers are the victims of failure while they may make tens of thousands of dollars in the process. Further, it is seen as an incentive for the parties to finish or suffer the consequences. But it also gives more and more power to the attorneys as time passes since the clients get deeper into the “process” with no way out but to forfeit all of the time and expense if they can’t settle, and settlement can be greatly influenced by the attorneys, opening the door for abuse.

Many conventional lawyers offer negotiated settlements to their clients without this penalty, such that they can go to court with their clients if necessary.

The Lawyers as Guides:  The collaborative process is supposed to involve a series of discussions by the divorcing parties where the lawyers act only as advisors and “guides” through the process. They are not normally there to represent their clients directly. This does not always occur in practice as will be discussed.

Court Action is not allowed: Certain actions automatically end the collaborative process such as one party filing a motion for a hearing in court. Additionally the threat of such an action is explicitly stated as something that is not allowed during the process (part of the guidelines) such that it forces the other party to settle. It is unclear how consulting outside attorneys is treated.

In Author's case, wife sought advice from litigators outside the collaborative process and told her attorney. Was she required to step down then? Attorney represented the act as wife seeking advice "in support of collaborative resolution", which certainly looks like a cover for her own position as collaborative attorney (how much advice can a litigator give about CL?).

Speak for yourself: The parties getting divorces are there to speak for themselves at four-way meetings and the attorneys are there to advise. This differs greatly from other scenarios where only the lawyers talk to negotiate a settlement and the divorcing parties are not on speaking terms. Since the attorneys provide advice to their clients however, it is murky how much the clients speak for themselves.

Principles and Guidelines for Collaborative Divorce:  A number of principles and guidelines are given at the start of a collaborative divorce. Here are highlights:

  1. All disclosures are open and honest and do not require court intervention
  2. The divorcing couple agrees that there is no guarantee of success for collaborative
  3. The parties agree to operate with integrity and not take advantage of inconsistencies, misstatements of facts or law.
  4. The parties agree to “vigorous good-faith negotiations” using reasoned bases for their arguments and a constructive approach on all disagreements and disputed matters in the interests of reaching consensus.
  5. The attorneys agree to immediately withdraw from the process if they discover that the divorcing parties are withholding information or being untruthful.
  6. The parties agree that the attorney's fees are paid in a timely fashion and no attorney can float credit to a client.
  7. The attorneys can assist the parties in finding new lawyers if the process fails.


Getting outside Help: Some collaborative attorneys will state that if the parties cannot agree on a specific topic, that an outside private judge can be appointed to adjudicate the matter.  Collaborative “Coaches” are also offered as a means to help the two parties discuss things in a constructive way. This varies greatly from traditional cases where the parties are usually not discussing matters.

The Paternalistic Aspect: The lawyers sitting quietly as referees (earning large hourly fees) while the spouses discuss issues calmly, and “guiding spouses through the process” has a paternalistic tone, as if they are there to ensure the best behavior of the spouses. Coaches are offered at the start too, in case the spouses have trouble talking. Mediation may be offered. Behind the scenes however, they may be advising their clients to take adversarial positions thereby causing the conflict they’re supposed to resolve.


arrowNEXT: Author's case story..


home Back to top of this site.


CL banner

©2007-2016 MyCollaborativeLawDivorce.org

This site or any of its content may not be used in any form without the expressed written permission of MyCollaborativeLawDivorce.org