by, Admin
"Collaborative divorce" may be the new buzz term in family law practice. Its proponents enthuse about far better and a smaller amount high-priced settlements, higher client satisfaction, a smaller amount accounts receivable, and a smaller amount stress within the method of law, than they can attain via a conventional process to family law disputes. How realistic are these claims? What are the down sides of "collaborative divorce"? Does the concept of "collaborative divorce" provide ethical pitfalls and possible malpractice minefields for the unwary practitioner?
Lawyers who participate within the "collaborative divorce" movement use methods borrowed from much more established choice dispute resolution procedures to resolve family law disputes with out litigation. However, as opposed to much more accepted dispute resolution procedures, in "collaborative divorce" the lawyers and their customers agree that they usually do not engage in formal discovery, will voluntarily disclose information, and will settle the case with out court intervention of any sort . They assume a duty to inform the attorney for the other party of errors they note in opposing counsel's legal analysis or understanding from the facts. If they are unable to settle the case, each lawyers must withdraw from representing their respective customers and the estranged spouses must begin more than with new counsel.
Good Lawyers Routinely Procedure Cooperatively
Even one of the most enthusiastic supporters of "collaborative divorce" concede that the concept of settling cases instead of litigating them is hardly novel. Capable family law practitioners have usually directed their effort and creativity toward reaching agreement instead of duking it out in court. It is not news to anybody that litigation is high-priced – sometimes prohibitively so – and that the most satisfactory settlements derive from skilled negotiation between in a position counsel instead of a court-imposed resolution of disputed issues. How does the concept of "collaborative divorce" differ from what experienced practitioners do as a matter of course?
Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and importance assets, set and meet scheduling deadlines, and otherwise facilitate resolution from the case. They respect legitimate positions taken by another party and encourage their customers being realistic and respectful as well. They're willing and in a position to compromise, and they are creative in crafting acceptable resolutions of disputed issues. "Collaborative divorce" supporters intimate that their method is specific mainly because lawyers commit that they usually do not "threaten, insult, intimidate, or demonize" other participants within the divorce lawyersivorceprocess. Beneficial lawyers don't do that now. The American Academy of Matrimonial Lawyers, which historically has provided a type for beneficial method nationally, has promulgated "Bounds of Advocacy" that set a high normal for professional courtesy and cooperation.
Emotional cost. "Collaborative divorce" proponents say their method is formulated for parties who don't desire to go to war and who don't want "to hate each other for the rest of their lives." This description fits the vast majority of family law clients, such as most of individuals whose cases end up in court. Consumers nearly usually care for the emotional price of adversary proceedings, and for the impact from the divorce action on their young children along with other family members. To suggest that those who extremely care will give up the protections provided by court oversight is to do a vast disservice to most of our clients.
Financial cost. "Collaborative divorce" supporters desire to reduce the prices from the method by streamlining the discovery process. This also is not a new idea. Beneficial lawyers have usually sought to hold formal discovery to a minimum, to share prices of appraisals, to stipulate to values, and to cooperate in other methods to hold prices down. Numerous experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in individual conferences with experts, along with other such collegial arrangements.
As the around analysis indicates, the goals espoused by "collaborative divorce" lawyers don't differ in degree or in sort within the goal from the vast majority from the family law bar. Most lawyers try a cooperative process first. Most lawyers agree – and most of their customers concur – that resolution of problems by settlement is preferable to litigation. And in most cases, lawyers and their customers resolve disputed problems by agreement and don't resort on the courts.
The Limits of Collaboration
Despite one of the most concerted efforts of in a position counsel, we all know that not all cases settle, and individuals that do settle sometimes don't settle easily. All of us have encountered the frustration from the last-minute, courthouse steps agreement, following completion of all the work and stress of trial preparation. Why is it that some cases don't settle until the extremely last minute, and some cases don't settle at all?
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