What to Do When the Collaborative Process Breaks Down

There may come a time in a collaborative matter when a spouse becomes disillusioned with the process and decides that he wants to try litigation.

This can happen when the process goes on longer than usual, and the clients feel like they’re not making any progress. There is no denying that each full team meeting is expensive, with the clients typically paying the fees of at least four professionals. So if more meetings are required than what was originally estimated, the fees can escalate quickly. And “the grass is always greener,” right? But do you just let the clients call an impasse?

Not if you feel that continuing collaboratively is in their best interests.

Of course, infrequently, there might be a time when the team feels that impasse is best. Litigation may become necessary in cases involving mental illness or addiction, especially if those issues have been exacerbated by the stress of divorce. Or it may be necessitated because the clients still can’t “hear” each other, even in collaboration. But even for such divorces, the collaborative process is usually a better option than litigation. So what to do if a client cries “Impasse!”?

Talk Your Client Off the Litigation Cliff

If the issue is the escalating expense of collaboration, explain to your client how litigation expenses are usually far greater. In litigation, parties are at war, and attorneys file motions and set hearings on the smallest issues. Each side must hire expensive experts who battle it out in court, rather than having an agreed-upon expert working in the best interests of both spouses. Litigation often takes much longer than collaboration, as the parties must schedule hearings around the judge’s busy calendar, and matters are often delayed. So, while collaboration can be expensive, litigation expenses are typically far greater.

Litigation is extremely adversarial. Suggest that the client spend a day in family court, watching other cases. That alone will convince most that the courtroom is not for them.

If children are involved, remind the clients that collaboration is best because it doesn’t put the children in the center of the controversy. Instead, the team works to help the spouses understand and reach agreements that are in their children’s best interests. And, when necessary, child specialists can be included on a team to act as advocates for the children.

If a client wants to impasse a collaboration, remind him of why he chose the process in the beginning. It truly is a kinder, gentler way.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

2018JJd