The Stalled Collaborative Law Case


The California Family Code defines collaborative law as the process in which the parties, and any professionals engaged by the parties to assist them, agree in writing to use their best, good faith efforts and attempt to resolve family law disputes without resorting to adversary judicial intervention.

These are some of the principles for undertaking a collaborative case:

  • The parties direct their attorneys, accountants, financial specialists, therapists, appraisers and other consultants to work cooperatively for resolution of issues without resort to litigation
  • The parties agree to give full, honest and open disclosure of all information, whether requested or not
  • The parties commit themselves fully in order to reach resolution without the need for court intervention.

When parties opt for a collaborative law process, they enter an agreement which specifically states that if they want court intervention, all professionals are fired. This essentially means the parties are starting over.  The theory behind this restrictive straightjacket is that parties and counsel will be motivated to settle their case because a failed process requiring new counsel is expensive.

So, what happens when the principles of collaborative law are not being met by your attorney?  By the other attorney?  By your spouse?  How can you maintain your commitment of no court intervention and keep the process in place and moving forward?

  1. Dismiss an uncooperative or unproductive lawyer and hire a new one who will agree to work within the collaborative process.
  2. Insist a mediator be hired to resolve impasses that the lawyers are unable to break. The mediator can be a lawyer or even a retired judge, but their role is to help the attorneys reach agreement – not make the decisions for them.
  3. Ask the lawyers to generate new options that both sides can consider as ways to resolve the case.
  4. Insist on timelines setting dates by which each party, lawyer or neutral expert will complete a specified task.  If being accountable for timeliness is a problem, retain a case manager, to keep the process on track and hold everyone accountable.
  5. Consult with a litigator for an opinion on whether litigation is in fact the preferable option in your specific case.

Collaborative law cases can only work when the parties value results over conflict, the lawyers involved are trained in the collaborative process and all participants are committed to moving the case toward resolution.  If these three elements are not present, it is likely best to abandon the process.  The ideas set forth above can help to move a stalled collaborative case forward if that is what everyone involved wants.  If not, then litigation may be the only option.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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