by Sandra Joan Morris
CA State Bar Certified Family Law Specialist
Past President, American Academy of Matrimonial Lawyers
How expensive is the collaborative law process compared to other methods of resolving cases? As a family law trial attorney, I heard for years that the collaborative process is much more expensive because if it ends, the team members are off the case. However, my experience is that the collaborative process is usually quicker and less expensive in most cases, and much less expensive in complex cases, than other methods.
Even if fighting it out at the courthouse was a good way of resolving problems, at this time the lack of funds and important resources for the court system make litigation drawn-out, expensive and inadequate. In law cases, what takes time, costs money. For this reason alone, more and more litigants are looking for ways to resolve their cases without resorting to the court system.
Any alternative to litigation could cost more if it fails, since you have to add its cost to the cost of going back to, or starting, litigation. Even if it succeeds, it could still cost more money if it took a lot of time to resolve. However, because both parties control the outcome, and in a far less acrimonious way, the benefits are immeasurable. Some judges say that if both parties go away upset, it was probably a good decision. The collaborative process strives to have the parties reach a resolution that is a win for both of them.
Mediation and settlement conferencing are the most common current alternatives to litigation. Both usually take place after all of the financial information has been provided (the “discovery” phase of the case,) and both often represent a last-ditch effort at resolution, frequently on the steps of the court house. Unfortunately, getting to this level of knowledge is usually the most expensive part of a family law case.
In a complex, high asset case where a lot is at stake and a lot is disputed, this phase can go on literally for years. This process is polarizing. By the time it is done, the parties are even angrier and more distrusting than when it began. Sometimes the lawyers are, too.
By contrast, the collaborative law process starts at the very beginning of the case. The financial expert on the team gathers all financial information in an informal but thorough way. When you agree to the collaborative divorce method, you agree to cooperate by providing this information, and if needed, access to your personal financial advisors.
Within months, not years, the financial expert has all of the needed information, and can provide reports on matters such as how much income is available to pay support and what is the marital standard of living. The financial expert can promptly arrange for the appraisals of personal and real property. The economic and time savings in the costs of discovery is enormous. You have saved time, and therefore saved money.
Even if the collaborative process ends before there is a settlement, the financial documents that the neutral financial expert got can still be used. All or portions of the reports of the financial expert also can be used if both parties agree, which can help to narrow the future issues.
Most litigated cases take at least two years to complete and get to trial or settlement. Many take far longer. At that point the “back-end” (after discovery is complete) mediations or settlement conferences can take a few sessions, but I have had complex cases that have taken a year or more to resolve in mediation or settlement conferencing. On the other hand, my experience in collaborative cases is that they usually conclude in just over a year.
The collaborative teams include a mental health professional coach for each party, an attorney for each party, a neutral financial expert and, if needed, a neutral child specialist. Litigated cases usually have an attorney for each party, a financial expert for each party as well as possibly a neutral expert, a custody mediator and perhaps a custody evaluator. Not only are there fewer professionals in the collaborative process, but they do not overlap their work and are united in being solution-oriented. The addition of the collaborative coaches is a very valuable component. Coaches help the parties to learn to communicate more effectively and productively, which allows them to focus on their settlement issues. The education they provide is invaluable both for the settlement process, and after the case is over.
Does a collaborative divorce cost more? Since it saves time, discovery expense, and emotional stress and exhaustion, my answer is “no.”