In collaborative practice, what happens if we hit an obstacle and can’t reach a settlement, because neither of us is willing to compromise? Can our lawyers take our case to court on this one issue?
No. In a true collaborative case, where a participation agreement has been signed, the attorneys representing the parties in the collaborative process may not take the case to court even if they agree to do so, as that is said to undermine the entirety of the collaborative process. If you hit an obstacle trying to reach a settlement during the collaborative approach, and that impasse prevents further discussion or settlement, there are several options:
- Take a break and revisit the issue in a week, a month, six months, or a year. There is nothing wrong with taking a break from the process if you and your spouse need to do so in order to regroup and come back to the table. What seems like an impasse or deal breaker today may be much less important to you in six months.
- Bring in a mental health provider to work with each party jointly or a mental health professional for each party individually to address why there is an impasse and what can be done to help resolve it. The divorce coach should also be involved.
- If the issue is financially related, bring in the financial professional or a new independent financial professionals for one or both parties. Sometimes a fresh perspective is helpful.
- Go to mediation. There is nothing that prevents a collaborative case from going to mediation.
If there is still no resolution when trying to reach a settlement, it may be that court intervention is necessary. It would then be necessary to obtain new counsel to litigate the remaining issue. If that were the case, it would be prudent to attempt to resolve all other issues to which an agreement has been reached in a signed written agreement.
Diana N. Fredericks, a family law attorney at Gebhardt & Kiefer, P.C. Diana works with clients whose needs lie in all areas of matrimonial and family law.