How The Disqualification Clause Makes the Collaborative Process Different

Date Posted: September 27, 2016 5:16 pm

Disqualification is the basic tenet, the bedrock of Collaborative Divorce. This clause states that if the Collaborative Process breaks down or is ended for any reason by any participant, the lawyers are disqualified from representing either spouse/partner in a litigated scenario (it also applies to the other professionals involved). It is what makes the Collaborative Process different from mediation, attorney-driven settlement negotiations and cooperative approaches to dispute resolution.

The way the Collaborative Process works is to move forward as if litigation is not a possibility.  As a lawyer, my mindset is completely different when I am working as a Collaborative Professional.  I am not discouraging my client from communicating with his or her spouse/partner.  I am not encouraging my client to demonize the other person to make the client look better in the eyes of the judge.  I am not thinking that a particular couple won’t find resolution and will, instead, end up in court.  I am not thinking about preserving evidence or establishing audit trails.  I am not thinking about trial strategy or getting the other side to do something or catching them in a lie or deception.  I am not thinking up reasons why my client’s position should prevail.  I am not working towards a solution limited by what a judge can or cannot do.  I am not rationalizing that my actions are for the benefit of my client, so that my client will win and the other person will lose.  I am not taking sole responsibility for resolving the conflict.  I am not alienating my colleague or the other spouse by posturing.

Instead, I am utilizing the skills I have honed to recognize the needs and interests of both spouses/partners and to understand that other family members will be impacted by how the case is handled.  I am encouraging communication and cooperation.  I am acknowledging that interests other than my client’s exist.  I am proceeding with the belief that each of the people involved with a given Collaborative Team is working together to help a couple, a family, envision possibilities, create options and move forward with their lives.  I cannot do that if I am concentrating on the possibility of litigation.