In a Collaborative Divorce your attorney is obligated, in the same way that a litigation attorney is obligated, to advocate on your behalf. In both approaches, the first commitment of the attorney is to help his/her client establish and obtain their goals for their post-divorce life, within the limits of the law, by explaining the law and by explaining how judges are likely to rule in cases similar to their case.
(One of the most important differences between mediation and Collaborate Divorce is in the advocacy provided by your Collaborative attorney. The neutral mediator cannot provide the parties with legal advice. That is why many clients choose Collaborative Divorce over Divorce Mediation.)
It is important to emphasize that advocacy in Collaborative Divorce also includes, to the same degree as in litigation, obtaining documents and gaining access to the essential factual information controlled by the other party (e.g., about income, assets, debts, business valuations, etc.)
In Collaborative Divorce cases, parties can engage the services of experts to provide “forensic analyses” of financial records, tax returns, etc., and to provide independent third- party financial appraisals. Therefore, neither side is disadvantaged in this regard, even if there was an imbalance of power or limited access to information during the marriage. The parties sign an agreement at the start of any Collaborative Divorce to be transparent in the exchange of financial information.
Despite the similarities, there are some importance differences in how advocacy is handled in a Collaborative Divorce case, in contrast to litigated cases. These differences typically allow Collaborative Divorce cases to be settled more quickly, more cost-effectively, and with less drama, stress and pain than litigated cases.
These important differences are:
– Collaborative attorneys are 100% committed from the beginning of the case to finding a settlement that their two clients find mutually acceptable. They focus on what their clients and their clients’ children need going forward for a successful post-divorce life, rather than focusing on past blame and punishment.
– Collaborative attorneys also avoid posturing, delaying tactics, and antagonizing the opposing side, since those actions — while perhaps appealing to some clients in litigation cases simply because it “feels good” — cost clients a lot of money and are counter-productive for reaching a settlement.
– A common role for the attorney in a Collaborative Divorce case is to empower the client to speak and negotiate for his or her self, by providing knowledge, legal advice, strategies, and help in formulating their goals. Clients benefit, and the negotiation progresses more quickly, when clients find “their own voice” and shape their own negotiations.
– Yet, in those occasions when a client is not comfortable or not well-enough informed to speak about a certain aspect of the case, his or her attorney is prepared to speak on their behalf to keep the negations on track toward obtaining the client’s goals.
– Likewise, if a client knows that by speaking or negotiating directly that they are likely to antagonize their spouse (or ex-spouse), then their Collaborative Attorney will speak on their behalf as a means of keeping the negotiation on track.
– Collaborative attorneys, therefore, always try to help their clients to make their case in the ways that appeal to the other side. This helps find the common ground needed for settlement, rather than escalating conflicts and angering the other spouse to no benefit (which is what can easily happen during litigation).
– Through a series of joint meetings during the Collaborative Process, in which the goals and priorities of each party are presented, explained and negotiated, both sides come to understand how to reach a good settlement.
Therefore, rather than seeking a trial and a judge to decide the details of their settlement, clients quickly realize that the settlement will be better by using a process that lets them decide the terms of how they want to dissolve their marriage.
It should be noted that the entire Collaborative Team (i.e. two attorneys, the financial neutral and a neutral divorce coach) is focused on helping the clients find areas of common ground and “opportunities” for reaching a settlement. Opportunities arise, for example, when both parents want the same things for their children, even if one has to give up something they would not have done otherwise; or when a client is willing to give up something in exchange for something they want even more from the other side. So, part of the process is helping clients to determine and rank their priorities.