Isn’t it a Bad Idea to Give Up My Right to Go to Court?
If you are asking this question you certainly are not alone. Many clients and lawyers in the world of family law are puzzled at the way Collaborative Practice excludes court. Here’s why the exclusion makes sense.
- The exclusion maximizes focus. When you are in settlement discussions you want them to be sincere. You want them to actually be about settling your case. This is as opposed to being a dress rehearsal for the courtroom. All too often, in non-collaborative family law negotiation, this is exactly what happens. Instead of focusing on your needs, the lawyers have half a mind on negotiating for you, and half a mind preparing to impress a judge.
- The exclusion leaves an opening. Remember that choosing collaborative is not a permanent promise. You can change your mind if it’s not working for you. True, your collaborative lawyer cannot leave the process with you to take your case to court. However, s/he will be more than willing to efficiently transfer your case to a litigation lawyer in the unlikely event collaborative process ends without an agreement.
- The exclusion maximizes options. When court is not off the table, the discussions can easily be hampered by two related things: 1) rigidly following the legal model of rights and responsibilities; and 2) implicit or explicit threats by counsel that, without a concession on a certain point, your case is going to court. Both these limit the ability of the discussions to be creative and flexible. Creativity and flexibility are both key to getting you a good Separation Agreement and a good life after.
This post was written by Shalom Wise.