There are many attempts these days to avoid litigation. Despite its warts, the American legal system (including the court system) is the best in the world. For not much money in terms of filing fees, one can be heard by an elected judge (in most cases) who is absolutely impartial. If you don’t like the result, you can usually appeal. If the decision was wrong, it will usually be reversed. The primary expense of litigation is attorney fees.
Collaborative divorce is a new approach to containing conflict in a divorce or custody case and reducing cost. In a collaborative divorce, people to use “joint” accountants and appraisers and agree to be bound by their opinions, even if there are valid grounds for contesting those opinions.
The attorneys for clients agreeing to a collaborative divorce sign an agreement with their own client and with the other side promising not to represent their own client if negotiations break down and litigation becomes necessary. The usual loyalty an attorney feels for the client is compromised because even if the client wants that attorney by his/her side in the end, the deal has been struck. In that event, all the time and money spent with the first attorney is lost, and the client is expected to find another attorney, forge a new attorney/client relationship, and basically start all over again on the eve of trial.
People need to think through the costs and benefits of collaborative divorce before signing up. Divorces are not usually “love-in’s.” The judges are well trained to spot issues and help parties resolve their differences. They know how to identify high conflict divorces and contain them. The judges have the right under a relatively new court rule to order people into mediation. Most attorneys have the ability to represent their clients effectively without a need for high conflict and ugliness. If, however, there is a need to resort to a trial, parties then need the full range of rights and resources (including counsel of choice) that have served our nation so well for so long. In fact, only 10% or so of family law cases proceed to trial with or without collaborative divorce. It is not always easy to determine which cases will need a trial when they begin—so a collaborative divorce agreement that designs the process early in the case may become very problematic at the end of the case. In the experience of most attorneys, the existing process provides ample room for “collaboration” on various issues without compromising one’s right when collaboration becomes futile.
If you are considering a collaborative divorce, it would serve you well to consult with another attorney and consider the advantages and disadvantages of both approaches in your particular case. Further, do not expect that a collaborative divorce will necessarily be cheaper. Because you will forfeit your attorney if you leave the process, you may end up spending more money in the end as a result of bringing a new attorney up to speed.
The Legislature passed a statute regarding collaborative law in 2014: MCLA 691.1331 et seq. While the statute does not provide much guidance, it does evidence the Legislature’s approval of the process.