Collaborative Law vs. Litigation: Which Is Right for You?

Deciding between collaborative law versus litigation depends on your relationship, goals, and situation. Moreover, by weighing the pros and cons of each and seeking legal advice, you can better select the right dispute resolution method.

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Going through a divorce or resolving a family law dispute can feel like an emotional rollercoaster. You’re already dealing with a major life change, and the last thing you need is a stressful legal battle. You essentially have two options to settle your case – head to court in hopes a judge will decide what’s fair or try to work it out yourselves through a collaborative process.

As per 2022 research, about 90% to 98% of family law cases settle before trial. That means most couples end up resolving issues like divorce, child custody, and property division through agreement rather than courtroom order. Unfortunately, not every couple is suited for collaboration, as certain complex cases may require litigation. So, which route is right for you? 

Read on as this article explores the key differences between collaborative law and litigation to help you decide.  

1. Collaborative law: A cooperative approach  

Collaborative law, also known as collaborative practice, is a dispute resolution method designed for family law cases like divorce and child custody disputes. The goal is to create a respectful, cooperative environment for you and your spouse to work out a settlement that addresses both of your needs.  

Here’s how it works: you and your spouse each hire a collaboratively trained attorney. After that, all parties shall sign to negotiate in good faith, disclose all relevant information, and commit to settling the issue out of court. If you’re interested in a collaborative approach to your matter, law firms like Boyce Law, among others you may find in your region, offer experienced attorneys trained in communication and conflict resolution. 

Together, you, your spouse, and the attorneys communicate openly and try to reach a settlement through a series of four-way meetings. Neutral experts like child psychologists, financial advisors, or appraisers can also participate to provide information and insight.   

Benefits of collaborative law  

Collaborative law offers several potential advantages over traditional litigation:  

• More control over the outcome: You and your spouse get to play an active role in crafting settlements that work for your family as a whole. Rather than putting your fate in the hands of a judge, you’ll have a say in the final agreement. For many couples, this level of control over big decisions like who gets the house or how to split time with the kids is extremely appealing.  
• Creative solutions tailored to your family: Because you’re not constrained by the letter of the law, the collaborative process lets your team explore creative options a judge may not legally be able to order. For example, a judge can only grant joint or sole physical custody, while collaboration lets you create a customized schedule like alternating weeks or splitting time by school year.  
• Private and confidential: Unlike court hearings and records, which are public, collaborative negotiations remain entirely confidential. This allows you to speak and express yourself openly.
• Potentially reduced costs: The average cost of divorce can range between USD$ 15,000 and USD$ 20,000. Through collaborative law, you can resolve disputes more cost-effectively. Settlements are typically reached faster than court cases, requiring less attorney time and expenses.   

2. Litigation: The traditional court process

   

With litigation, both you and your spouse lawyer up and go head-to-head through the judicial system. Your attorneys take an adversarial approach as they fight for the optimal outcome for you. Litigation usually involves these steps:  

• Filing the paperwork: To start the legal process, one spouse has to file initial documents like a summons, petition, and proposed custody schedule.  
• Collecting information: Both sides exchange loads of paperwork as they gather information through requests, subpoenas, and depositions.   
• Motions and hearings: Your attorneys can constantly file motions to ask the judge for certain rulings. There will be lots of back-and-forth hearings where attorneys argue these requests.   
• Attempting to settle: Before trial, attorneys will likely try hammering out a settlement through negotiations. But without the spirit of collaboration, these talks can turn contentious. If no agreement is reached, you’ll have your day in court, where either the judge or a jury will hear arguments and evidence from both sides before making the final call.  
• The final judgment: Once it’s all said and done, the judge issues official rulings on important issues like property division, custody, and spousal/child support.   

Benefits of litigation  

For some couples, litigation may be the right choice:  

• Seeking a court mandate: If your spouse refuses to budge on an issue, a judge may be able to order something they’d never agree to otherwise.   
• Wanting to set a precedent: If your situation involves a complex legal issue with no clear standard, getting a court ruling can establish a useful precedent for future cases. For example, a judgment could clarify how crypto assets should be valued in divorce.  
• Negotiations have broken down: If you’ve tried negotiating directly and it’s only caused more frustration and conflict, litigation may be your only recourse.
• Safety concerns: As per the latest statistical research, almost a quarter of divorces – or 24% – cite domestic abuse or violence as the primary cause of divorce. For these cases, the distance litigation provides may be necessary for physical and emotional safety. The attorneys can communicate on your behalf, so you don’t have to.  
• Seeking vindication: If your spouse was unfaithful or caused clear legal harm, “winning” in court may provide the sense of justice and vindication you seek.  

3. Assessing your situation  

There are several factors to consider when making a decision:

• Your relationship: Do you and your spouse communicate civilly and respectfully? Collaborative law requires working together.  
• Complexity: Collaborative law can handle intricately complex matters like valuing businesses.   
• Cost: Collaborative law is often less expensive in the long run but requires both spouses to pay attorney fees.    

By understanding these key differences and assessing your specific needs, priorities, and situation, you can determine whether collaborative law or litigation is the better fit for resolving family law matters.  

Takeaway 

Deciding between collaborative law versus litigation depends on your relationship, goals, and situation. Moreover, by weighing the pros and cons of each and seeking legal advice, you can better select the right dispute resolution method.