There are several ways that a divorce case can be resolved: litigation, arbitration, mediation, attorney-assisted mediation, collaborative divorce, and cooperative divorce. In this article, we will explain collaborative divorce and cooperative divorce as alternative dispute resolution techniques in marital dissolution cases, and compare the pros and cons of each.
What is a Collaborative Law Divorce?
In a collaborative law divorce, the parties will each hire their own attorney. Each party will meet one-on-one with his or her attorney to discuss what he or she would like to accomplish in settlement, as well as the minimum acceptable result. Both parties and both attorneys will then sign a "Participation Agreement," in which everyone involved commits to the collaborative divorce process, which usually consists of the following clauses:
Both parties and both attorneys will then sign a "Participation Agreement," in which everyone involved commits to the collaborative divorce process, which usually consists of the following clauses:
- The parties will agree to participate in the process in good faith and to freely and openly exchange information;
- The attorneys will be bound by the Participation Agreement to withdraw from representing their clients ;
- The parties will agree to maintain the status quo regarding their children and assets during the course of the negotiations, unless mutually agreed otherwise.;
- The parties will set forth the conditions under which the collaborative divorce process can be terminated without an agreement.
After the Participation Agreement has been executed, a series of meetings between both parties and their attorneys will occur in order to negotiate issues of maintenance, asset division, child support, and child custody. If necessary, neutral experienceds will be retained by the parties, such as accountants, financial advisors, and behavior experienceds.
A collaborative divorce is different from a mediation. In a mediation, a third party professional mediator is hired to try to bring the parties together on the terms of their agreement. While mediators may be brought into the collaborative divorce process if the parties are having difficulty coming to terms, collaborative divorces are typically accomplished between the parties and their attorneys without a mediator.
Once a settlement agreement is reached, the attorneys will file it along with a divorce petition in the appropriate domestic relations court, where it will be entered by the court without the need for the parties to appear.
What is a Cooperative Divorce?
As in a Collaborative Divorce, the attorneys and clients in a Cooperative Divorce will agree to cooperate with one another and share information in an effort to resolve all of the issues surrounding the divorce without litigation. The attorneys typically do not conduct written discovery or depositions. As in a Collaborative Divorce, the final agreement and petition will be filed with the court upon completion, and the process will be simplified.
The primary difference between a Collaborative Law Divorce and a Cooperative Divorce is that the attorneys are not required to sign an agreement requiring them to withdraw as counsel should the cooperative process fail and litigation be required.
Pros and Cons of Collaborative Divorce and Cooperative Divorce
Negotiating out of court is less expensive than litigation. If the parties believe that they can resolve their issues in good faith through negotiation, both Collaborative Divorce and Cooperative Divorce may be more cost-effective options than traditional divorce. Agreements reached out of court between the clients without the need for trial also tend to be more comprehensive than a divorce decree entered after trial. Out-of-court agreements also tend to lead to less post-divorce litigation.
In a Collaborative Divorce, because the attorneys are required to withdraw from representing the clients should litigation be required, the parties and their attorneys are even more disincentivized from litigation than in a Cooperative Divorce. However, the flip-side of this coin is that if the Collaborative Divorce process fails and litigation is required, the parties may end up spending more money than they would have in a Cooperative Divorce or a traditional divorce, because they will be required to hire new attorneys who will start the process in the beginning. The new attorneys will not be permitted to use the work product of the previous attorneys that was created during the Collaborative Divorce process. The clients will also have to hire and pay new experienceds if the process fails.
Another drawback to Collaborative Divorce is that, because formal discovery is waived, the attorneys are unable to conduct full discovery or compel disclosures. The parties instead rely on the completeness and accuracy of the other side's voluntary disclosures. If one of the parties later discovers that these disclosures were incomplete or inaccurate, they will not be able to use this as a basis to overturn the divorce decree that they reached by agreement.
By contrast, in a Cooperative Divorce, if the out-of-court negotiations are unable to resolve some or all of the issues, the attorneys can continue to represent their clients and move smoothly from negotiation to litigation without a separate attorney having to duplicate their work.
The bottom line is that a Collaborative Divorce may lead to a higher likelihood of a cost-effective settlement than a Cooperative Divorce. However, if the process fails, a Collaborative Divorce will end up being more expensive than either a Cooperative Divorce or a traditional divorce. A Cooperative Divorce provides a middle ground, where the parties can attempt a cost-effective settlement without the high cost of the settlement's failure.
Both Collaborative Divorces and Cooperative Divorces rely heavily on the actual good faith of the parties and their willingness to cooperate, negotiate fairly, and exchange information. Not every divorce is a good candidate for this process, but if the parties appear to meet the criteria of good faith, Collaborative Divorce and Cooperative Divorce may be cost-effective solutions that also save the family from the stress of litigation.
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