Real and perceived disadvantages of collaborative law

AuthorRita Pollak
PositionAttorney Rita S Pollak, Past President of the International Academy of Collaborative Professionals
2009] Real and Perceived Disadvantages 11
Collaborative Law, like every other process choice, has
some potential disadvantages. Some of those disadvantages are
real and others, which are often raised by collaborative
professionals themselves, not the clients, are potential or
perceived disadvantages.
Perhaps the potential problem, which is most often raised
by the professionals, is the additional cost to the client of closing
down the collaborative case and transferring to litigation counsel
if the process breaks down. Although this happens in
approximately 2% of cases, if the matter cannot be concluded to
the mutual satisfaction of the parties, and one party, or one
attorney, decides to end the process, then both parties must bear
the cost of hiring and educating successor counsel. Collaborative
counsel make the commitment to assist in the smooth transfer of
the case to litigation counsel. While this is a legitimate concern,
the statistical likelihood of having to transfer the case to litigation
counsel is really de minimis, and probably happens no more often
than when a client decides to change counsel during a litigated
case. Clients rarely raise this as a concern.
It is also true that, if several aspects of the case have been
settled during the collaborative negotiations, those agreements
can follow the case to new counsel, and only the contested issues
need be addressed; there is no need to throw out agreed-upon
items and begin from scratch. Furthermore, some cases which do
not settle during the collaborative process go on to settle in
mediation or arbitration. It is not inevitable that the case will go to
trial. While there is some concern that the collaborative process
could be abused by one party taking advantage of the transparent
and voluntary full disclosure provisions, there is little anecdotal
* Attorney Rita S Pollak, Past President of the International Academy of
Collaborative Professionals.

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