The divorce process known as “collaborative divorce” is a variation on the traditional process of attorney-assisted mediation. (You can learn more about collaborative divorce here; you can learn more about mediation here.) Although collaborative divorce has many supporters, it is not without its critics. Some of the commonly heard criticisms of the collaborative divorce process include:
- The attorney disqualification requirement deprives an individual of the right to counsel of his or her choosing.
- The focus of the participation agreement on the mutuality of rights and responsibilities blurs the ethical requirement that an attorney zealously represent his client and suggests, instead, that the attorney’s duty is not solely to his client, but to both parties to see the process through to a successful outcome. Although the American Bar Association has cleared collaborative divorce as an authorized alternative dispute resolution method, very few of the individual state disciplinary authorities have taken the opportunity to give the concept their stamp of approval.
- There are no uniform training or continuing education requirements for attorneys actively engaged in collaborative divorce, so the practice and training requirements can vary significantly from state to state.
- Collaborative divorce is the “flavor of the month” in our politically correct society. Litigation in general, and divorce litigation, specifically, have been the subject of negotiated out-of-court settlements for hundreds of years. Very few divorce cases ever proceed to trial; in fact, well over ninety-percent of all divorce cases are ultimately resolved, if not amicably, then by an agreed upon, out-of-court settlement ultimately approved by the court. Critics of the collaborative process have relied upon these facts to point out that in only a very few cases does the collaborative process work any differently or any better than the process of negotiation and settlement that has been with us since the creation of our American system of jurisprudence. They argue that the collaborative process, when it fails, creates a layer of additional costs in terms of time and money, which does the parties a disservice. Also, when it fails, the collaborative divorce process often creates greater enmity and emotional problems between the parties, due to the perceived recalcitrance or nefarious motivation of one party by the other.