Advantages of Disqualification in Collaborative Divorce

A Collaborative Divorce is governed by a "Participation Agreement" that sets out the contractual parts of the Collaborative process. One of the key provisions is the so-called "disqualification" provision, which disqualifies the lawyers such that they cannot represent the clients in an adversarial proceeding. In other words, lawyers in a Collaborative Divorce may not represent their clients in court in any contested matter.

This means that new attorneys will need to be hired if the process terminates prior to final agreement. Fortunately, only a small minority of cases (statistically, about 5% of cases) don't reach final agreement. The vast majority of cases in the Collaborative Divorce process successfully settle in the process.

However, there are also many advantages of the disqualification provisions that cannot be obtained without disqualification, and which for many couples outweigh the disadvantage.

The advantages include:

Complete Alignment of Attorney Interests with Reaching Agreement - While many attorneys feel they try to help clients reach settlement, the disqualification provision assures clients that their attorney's sole focus is on reaching settlement.

Safety - Knowing that both attorneys are fully committed to helping the clients reach an agreed settlement adds a level of safety and assurance for the clients. Neither client needs to worry that the lawyer who acts nicely today will be the lawyer who will cross-examine them if the case does not settle. This additional safety allows clients to explore options in ways that are not likely possible in a process that does not have this safety built in.

More Confidentiality - Because neither attorney can go to court, there is no public forum where confidential information might be revealed. The disqualification provision therefore supports better confidentiality.

Incentive to Attorneys to Learn Non-Coercive Dispute Resolution Skills - Lawyer training in the United States is largely focused on using the court and coercive skills to try to get other parties to back down based on the strength of cases in the courts. While useful in the courts, those skills may not be as useful when seeking to reach a durable voluntary agreement. Attorneys who are willing to abide by the disqualification provision therefore have a strong incentive to learn non-coercive dispute resolution skills.

Trying Harder- When court is no longer an easy option, all simply work a bit harder to reach settlement.

These are just some of the advantages of the disqualification provision.
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Suitability for Collaborative Divorce

People often ask me: "which cases might be appropriate for a Collaborative Divorce?" They are sometimes surprised when I tell them that divorces with a moderate or even significant level of conflict are often appropriate divorces for the Collaborative process. Perhaps the most essential requirement is that both spouses be committed to resolving their dispute themselves, and willing to engage with integrity in the process to accomplish an optimal outcome consistent with their values. The commitment of the parties is as paramount to the suitability of the Collaborative Divorce process as is the training and experience of the lawyers and other professionals.

But which divorces might not be appropriate for a Collaborative Divorce? There are "red flags" for which Collaborative Divorce lawyers watch.

The most obvious red flag would be those divorces where there is active coercive-type domestic violence or where equivalent coercion and control is present, and cases involving substance abuse, or where mental illness is present. Some believe those cases are never appropriate for a Collaborative Divorce. Others believe a few of those types divorce cases may be suitable for a Collaborative Divorce unless certain conditions are met, for example (a) both parties fully acknowledging and accepting the depth of the problem, (b) an appropriate treatment plan for is in effect and monitored, (c) a highly experienced Collaborative Divorce professional team is in place (lawyers, coaches, financial, child specialist, etc.), (d) an assessment as to suitability, and (e) the parties willing to have a lot of patience. Similar conditions might be appropriate for divorces involving substance abuse or mental health problems. Even when the spouses are fully committed and appropriate treatment is in place, those cases will likely be highly challenging in the Collaborative Divorce context.

Other divorces that raise concerns include those when a client wishes to enter the process for a dishonest purpose, such as to use the process to undue advantage or otherwise undermine the objectives of the Collaborative Participation Agreement. A Collaborative Divorce is unsuitable for clients who are unwilling or unable to respectfully participate in joint sessions, and those unwilling to abide by similar boundaries in-between the joint sessions. Clients engaging in the Collaborative Divorce process must also have at least a small amount of trust that the other will be participating in good faith in the process, even if there may be significant conflict.

The good news is that a Collaborative Divorce is suitable for most people. The dysfunctions that would exclude people affect only a minority of the population. If the spectrum of divorcing clients is depicted by a bell curve, with no-conflict cases on one end and highly conflicted cases on the other, then the vast majority of cases -- those that are solidly in the center of the bell curve -- are suitable for a Collaborative Divorce. For those who are suitable and who choose a Collaborative Divorce, it can be a life-changing experience for the better.