Fact or Fiction? The Greatest Myths Regarding Collaborative Practice

A lot of people (including some attorneys) think they know everything there is to know about Collaborative practice. Here’s a look at some of the more frequent inaccuracies surrounding Collaborative divorce — and facts that will dispel them.

1. Both parties want the dissolution of the marriage. As is often the case in traditional divorces, Collaborative divorces are often unilateral: only one partner wants the marriage to end.

2. The parties have to agree on things before the process begins. The only thing the parties have to agree upon is to participate in the Collaborative process and to abide by the rules set forth in the Collaborative Participation Agreement.

3. The parties have to trust each other and get along. Many of the raw emotions that play out in traditional divorces – pain, fear, distrust, anger – are present in Collaborative divorces. The difference is a willingness by the participants to work with the Collaborative team to overcome those emotions to reach a settlement that reflects the needs and interests of both parties.

4. All divorces are Collaborative. The term Collaborative, when used with an upper case “C,” refers to a specific type of a divorce. It means that the attorneys involved in the case have been specifically trained in the Collaborative process (as outlined by the International Academy of Collaborative Professionals). An agreement that is reached through the Collaborative process is achieved differently from a negotiated settlement in a non-Collaborative case. In a traditional divorce settlement, the court has the final say. In a Collaborative divorce, the two parties determine what the final outcome will be.

5. Any attorney can do a Collaborative divorce. Collaborative attorneys have at least 12 hours of formal training in the principles and techniques of the Collaborative divorce process, a process which is built around four-steps: information gathering; evaluating needs, goals and interests of each party; brainstorming options for resolution; and achieving resolution. Within each of these four steps, however, the parties are afforded opportunities for creativity and fluidity that are not present in traditional litigation. Collaborative attorneys also have a minimum of 24 hours of mediation training.

6. Collaborative divorce is more expensive than a traditional divorce. It is true that a Collaborative divorce may involve several players, including Collaborative attorneys, a Collaborative coach, and perhaps financial experts and others, as dictated by the specifics of the case. But unlike traditional divorces, which can drag on for years, most Collaborative divorces happen in a condensed period of time, especially since both parties agree at the outset to reach a settlement outside of the courts. Furthermore, given that nearly 95 percent of all traditional divorces end in a negotiated settlement, the parties in traditional divorces often end up paying for a great deal of preparation for a trial that usually never occurs. Many Collaborative lawyers report that the total cost of a Collaborative divorce is often lower than that of a divorce processed through the adversarial process.

7. There is less assurance that documentation/information will be disclosed than in a litigated divorce. Both parties sign a contract at the beginning of the Collaborative process that states they agree to negotiate in good faith and to disclose all pertinent information. If one side expresses a reluctance to be forthcoming with necessary information, they are reminded that their actions (or inaction) may bring an end to the Collaborative process. If that happens, their opportunity for settlement outside of the courts is jeopardized.

8. Collaborative divorce is a fad. What began with one attorney in Minneapolis nearly 25 years ago has grown into an internationally recognized process that now includes thousands of practitioners from 24 countries around the world. In the U.S., nine states have adopted the Uniform Collaborative Law Act and another six have introduced the legislation.

Authors: Tim Colgan, Maryann Murphy, Dawn Sunday