While the Collaborative Divorce process works well for many couples, it is not without its potential pitfalls. If you are considering participating in the Collaborative Divorce process, you should be aware of the possible pitfalls and make your decision to proceed accordingly.
Not All Couples Can Deal With The Collaborative Divorce Process
A number of variables can affect the success or failure of the Collaborative Divorce process. Spouses who come to the process burdened with emotional issues which they can not let go will slow the process down. Emotional issues require time to work through. Parties to the process should be aware that while the collaborative process can be tremendously effective – the more emotional issues they bring to it, the slower the process will be, and the slower the process - the more expensive it will also be. As long as you understand this and are willing to be patient and bear the increased cost, your Collaborative Divorce team will help you complete process and achieve the desired results.
However, if your separation is particularly bitter; if your spouse has had an affair, 
or if there is a history of abuse or violence in your relationship, the prospect of settlement of all issues with the Collaborative Divorce process is not likely. In fact, the Collaborative Divorce process may make matters worse as it provides a forum for the airing of grievances which the collaborative lawyers are not necessarily trained to handle.
Cost
Paying for a family lawyer is not cheap. Fees for experienced family lawyers typically run between $300-$600 per hour. Fees for lawyers practicing Collaborative Divorce are no different. An important distinction between regular family law lawyers and lawyers practicing Collaborative Divorce is that a lawyer in the Collaborative Divorce process cannot threaten court proceedings to move matters along if negotiations stall. Nor can the collaborative lawyer commence court proceedings to promote and protect their client’s interests.
If the Collaborative Divorce process breaks down, Collaborative agreements usually require the parties to terminate the services of their collaborative lawyers and start all over with new lawyers for the purpose of litigation. If you choose the Collaborative Divorce process, you might end up paying hard earned money to a lawyer who really cannot use all of the tools they normally have at their disposal to move your case along in accordance with your needs and interests.
The Collaborative Divorce process is often, but not always, less expensive than the available alternatives such as mediation or going to court. However, the cost of failed Collaborative Divorce negotiation followed by court proceedings with a new lawyer is even more expensive. If you are considering the Collaborative Divorce process, you must be aware of the potential repercussions, and corresponding cost, of not reaching a resolution via the collaborative process. The fact is, approximately 35% of Collaborative Divorce files do not result in resolution.
When a Party has a Hard Time Making Decisions
The Collaborative Divorce process encourages spouses to make their own decisions regarding their future, guided by the legal principles of the family laws relevant in their jurisdiction. Given the degree of stress they are under, not all participants are able to make rational decisions.
Choosing the the Wrong Lawyer
While most Collaborative lawyers are genuine in their intention to practice collaboratively and abide by the rues of 
the Collaborative Divorce process, it is possible to, every now an then, come across a lawyer who has a litigation background and who just can’t really switch gears and work within the Collaborative model. If either your lawyer, or your spouse’s lawyer makes a habit of threatening to take the matter to court, you must recognize this and draw it to everyone’s attention. Stop the process and either regroup, terminate the process, or hire another lawyer.
Losing your lawyer part-way through your Collaborative Divorce process is no different than losing your lawyer part-way through the regular litigious court process. In both cases, the more invested you are with your lawyer, the less likely it will be that you’ll want to change lawyers and find a new one. In a typical court – based case, a new lawyer can take over relatively easily without completely disrupting the process. However in the Collaborative Divorce process, bringing a new lawyer on board may have the equivalent effect of starting all over again.
While having a lawyer leave because there has been a breach of the collaborative agreement, or because the clients want to litigate, is not as much of a problem - because both spouses will have new lawyers and a new venue to which address their dispute- having one of the lawyers leave for other reasons, such as an illness or a disagreement with a client, creates a whole new set of issues. A new lawyer may require that issues which have already been settled to re re-visited or re-negotiated. The other spouse and their lawyer may feel that the negotiations had not been conducted in good faith. The whole Collaborative Divorce process may be set back, or even terminate as a result.
The Collaborative Divorce Process Might Not Be in the Children’s Best Interests
The Collaborative Divorce process encourages separating spouses to find the middle ground and base their negotiations on their real interests as opposed to their positions. While this is beneficial with respect to the spouses, it is not necessarily beneficial with respect to the children. Compromises and the middle ground may not be ideal for decisions regarding the children. This is particularly relevant when dealing with very young children. For example, in setting up a schedule of residence for the children, while the parents may agree that the children should spend 50% of time with each parent, such a schedule might not be in the best interests of a 2 year old who does not understand why they have to sleep in a different bed every few nights and why they have no firm home base. If the parents can not make decisions based on the children's best interesets it may ultimately be necessary to have a judge to make those determinations.
Isolation of the Parties
For the Collaborative Divorce process to be successful, it is important that lines of communication be kept open. If either participating lawyer attempts to isolate you or your spouse from the other, or otherwise block open communication in ay way, you should raise this as a concern to everyone involved and stop the process immediately. There is nothing to prevent you and your spouse from meeting on your own and attempt to resolve some or all of the issues on your own. It is your process and you will have to live with the result.
Collusion or who is your lawyer really working for?
The lack of confidentiality between the collaborative lawyers and their client, and the fact that such non-guaranteed confidentiality is typically included in the Collaborative Divorce agreement, is so different from the common notion of lawyer-client confidentiality, that it can create an environment where a client may feel that their lawyer is betraying their confidence and colluding with the other side. While in a true collaboration, the sharing of necessary information is not only harmless but productive, should your matters become litigious, the previous lack of confidentiality can be problematic.
Lawyers practicing Collaborative Divorce form a distinct group within the legal community in your city. Because this group is frequently limited in number, lawyers practicing the Collaborative approach to divorce have, in many cases, worked with each other previously and may know each other quite well. Some clients may feel that these relationships among collaborative lawyers are more important to them in the long run than the interests if their own clients.
When is an Issue Really Settled?
If you are dealing with ethical collaborative lawyers, then issues should be able to be resolved one at a time and drafted into a settlement agreement or spreadsheet so that they are no longer negotiating points. If either your lawyer, or your spouse’s lawyer refuse to allow issues that your and your spouse say are resolved to remain off the table, then you run the risk of having your the Collaborative process hijacked by the lawyera.
Conclusion
While every Collaborative Divorce process can involve unexpected and upsetting events. It is possible to get through it, as long as the participants honestly express their concerns, trust the judgment of their lawyers and counselors, and, when necessary defer to their expertise about what is required to move through the process effectively.
Although the Collaborative Divorce process is flexible enough to meet the needs of a variety of situations that arise in the separation and divorce process, it is not for everyone. It requires a commitment on the part of both parties to work together honestly and with integrity. It also requires a desire on the part of the couple to work with their lawyers to resolve the issues, instead of relying on an outside third party (a judge) to make decisions for them.
Please note that this information is general in nature and not intended to be a substitute for legal advice. If you would like to know more about using a Collaborative Approach to negotiate n agreement with your spouse following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.
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