MCLC - Divorce and Family Law - Contrast with Litigation

How Collaborative Divorce Differs from Litigation

A divorce agreement reached through collaborative negotiation has many advantages over a litigated resolution. The efficient dispute resolution of the collaborative process preserves the sovereignty of the client while cutting litigation costs and providing greater satisfaction.

Parties working collaboratively have the advantage of dispute counsel working with them to be sure their voices are heard. But their attorneys, instead of battling, offer dispute advocacy focused not on entitlement but on needs and interests. The professional members of the collaborative team show respect and civility to their clients and the other members of the team. Agreements reached collaboratively have greater sustainability than orders imposed by a judge.

Collaborative Divorce. An excellent process when it comes to preserving relationships, Collaborative Law is especially good for complex cases in medium- to long-term marriages. The parties meet face-to-face in a series of meetings with their own collaboratively-trained counsel. Counsel advocate for their own clients, but remain open to the views and interests of the other side. Sometimes a neutral process facilitator attends the meetings to make sure that emotions don’t disrupt the process. The parties and their counsel sign a commitment agreement that says they will not litigate (with these lawyers). This keeps the threat of litigation out of the process. The parties usually are able to resolve their case amicably with sovereignty of the client, via dispute advocacy, rather than leave it to the court to resolve.

Litigation Ending with Settlement. Litigation occurs when there is a filing, many subsequent court hearings, and decisions are made by the court. There is formal discovery (depositions, production of documents, interrogatories). It is quite expensive. There is generally some negotiation by the parties through their dispute council. Sometimes the case is resolved at the “pretrial conference” date if a separation agreement is signed at that time. If the case proceeds to trial, much additional legal expense results, but a high proportion of those cases end by settlement on the first day of trial. This is a very expensive way to get a divorce. Ask an attorney to give you a ballpark figure. Unless you have lots of money to spend on this, try to use one of the methods previously described. It ruins the relationship between you and your spouse forever (because you have gone “to war”) and may affect your children detrimentally in their lives and in their marriages. Think carefully before deciding to litigate.

Litigation Ending with Trial. There is a trial and the judge decides all the issues of the divorce. Because a judge’s order is only a page or two long, it does not cover all the things a good divorce agreement covers. An actual trial adds a huge expense on the divorce bill and creates a lifetime of bad memories. The parties are not in control over their own destiny, but have put the decision in the hands of a judge, whose decision may be unreasonable (not usually the case). The judge may also take the middle road leaving neither party satisfied (often the case). Or the result can be “all or nothing” in favor of one spouse, which will leave one party happy and the other party devastated. Chances are you might not have an efficient dispute resolution.

So when you are embarking on a divorce, discuss the possible methods of proceeding with your attorney, and choose the one that best fits your situation and will go towards achieving other goals in the divorce, such as, perhaps, maintaining peace and civility with your future ex-spouse (if possible).

I can’t thank you enough for all you did for me, and always keeping [my wife’s] interests in mind. I believe this divorce was done in the kindest possible way. It’s a great compliment that [my wife’s attorney] thinks the agreement is fair to her.