A Collaborative Divorce is governed by a "Participation Agreement" that sets out the contractual parts of the Collaborative process. One of the key provisions is the so-called "disqualification" provision, which disqualifies the lawyers such that they cannot represent the clients in an adversarial proceeding. In other words, lawyers in a Collaborative Divorce may not represent their clients in court in any contested matter.
This means that new attorneys will need to be hired if the process terminates prior to final agreement. Fortunately, only a small minority of cases (statistically, about 5% of cases) don't reach final agreement. The vast majority of cases in the Collaborative Divorce process successfully settle in the process.
However, there are also many advantages of the disqualification provisions that cannot be obtained without disqualification, and which for many couples outweigh the disadvantage.
The advantages include:
Complete Alignment of Attorney Interests with Reaching Agreement - While many attorneys feel they try to help clients reach settlement, the disqualification provision assures clients that their attorney's sole focus is on reaching settlement.
Safety - Knowing that both attorneys are fully committed to helping the clients reach an agreed settlement adds a level of safety and assurance for the clients. Neither client needs to worry that the lawyer who acts nicely today will be the lawyer who will cross-examine them if the case does not settle. This additional safety allows clients to explore options in ways that are not likely possible in a process that does not have this safety built in.
More Confidentiality - Because neither attorney can go to court, there is no public forum where confidential information might be revealed. The disqualification provision therefore supports better confidentiality.
Incentive to Attorneys to Learn Non-Coercive Dispute Resolution Skills - Lawyer training in the United States is largely focused on using the court and coercive skills to try to get other parties to back down based on the strength of cases in the courts. While useful in the courts, those skills may not be as useful when seeking to reach a durable voluntary agreement. Attorneys who are willing to abide by the disqualification provision therefore have a strong incentive to learn non-coercive dispute resolution skills.
Trying Harder- When court is no longer an easy option, all simply work a bit harder to reach settlement.
These are just some of the advantages of the disqualification provision.