My lawyer says she settles most of her cases. How is collaborative divorce different from what she does when she settles cases in a Conventional Law practice?

Most litigated divorce cases settle figuratively, if not literally, “on the courthouse steps.” By that time, a great deal of money has been spent, and a great deal of emotional damage can have been caused by the parties or their lawyers taking extreme positions on various issues. Decisions may have been made by the judge earlier in the case, which favored one party over the other, or which created difficulties for both. The final settlement is reached under conditions of considerable tension and anxiety, and both “buyer’s remorse” and “seller’s remorse” are common. Moreover, the settlements are reached in the shadow of trial, and are generally shaped largely by what the lawyers believe the judge in the case is likely to decide based on the positions the lawyers take. Nothing could be more different from what happens in a collaborative law settlement. The Collaborative Law process is designed solely to make it possible for creative, respectful collective problem solving by the only people who will have to live with the decisions – you and your spouse. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in settlements based on litigation.

Is it realistic to expect attorneys to completely separate from their traditional adversarial roles?

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.

Are there really limitations in a collaborative divorce?

1. For the collaborative process to work, both participants must choose the collaborative divorce process and retain collaboratively trained attorneys.
2. The collaborative attorneys offer you representation limited to the negotiation of an agreement. You never lose a right to litigate but you may not use your collaborative attorney to litigate for you. 
3. The attorneys pledge to represent each of you outside of court. They focus on bringing you both to resolution.
4. To engage in a collaborative divorce is an important decision based on a mutual commitment and supported by your collaborative attorneys.