Dispute Resolution Options: Cost of Collaborative v. Cost of Litigation

How much might couples save for their family by successfully collaborating rather than spending to fight in court? Imagine if your family could save that money!

Ask about fees at your lawyer’s hourly rate and costs to litigate, compared with fees and costs to collaborate.  Each round of litigating – initial fighting, later modifications, and contentious enforcement and contempt actions – can cost thousands in attorney fees and costs.  Besides the money, what would it mean to your family if you could also avoid the time and emotions spent litigating, sometimes for years?  Wouldn’t it be great pursuing happier, more productive things?

Highlighted below in boldfaced green are litigation tasks that aren’t necessary or typical in the collaborative process.  Collaborating couples who choose not to fund those tasks and successfully resolve their issues (as 80% or more collaborating couples do), can save a lot of money, time, and emotions.

A.  Case Assessment, Development, Administration

  1. Facts Investigation/Development
  2. Analysis/Strategy
  3. Experts/Consultants – Not typical in collaborative
  4. Document/File Management – Typically less paper in collaborative
  5. Legal Research
  6. Budgeting – More predictable in collaborative
  7. Other Case Activity (Including Joint & Professional Meetings)

B.  Pre-Trial Pleadings and Motions

  1. Pleadings – Streamlined, minimal, and simplified in collaborative.
  2. Legal Research – Typically minimal in collaborative.
  3. Preliminary Injunctions & Provisional Remedies – Rarely necessary in collaborative.
  4. Court Mandated Conferences and Other Hearings –  None or minimal in collaborative (the judge may want a status update).
  5. Dispositive Motions – Not needed in collaborative.
  6. Temporary Hearing and Other Hearing Preparation and Attendance – Not when couples are collaborating.
  7. Other Written Motions, Submissions –  Written motions & submissions aren’t done in the collaborative process.
  8. Agreements & Judgments [Marital Settlement Agreement] – Done in both litigation and collaborative.

C.  Discovery

  1. Mandatory Financial Disclosures under Florida Family Law Rule 12.285 – Collaborative requires transparent disclosure of documents the couple, financial neutral, and rest of the collaborative team decide are important. 
  2. Writing document requests, interrogatories, requests for admissions – Extensive discovery litigating parties engage in, and its costs & delay isn’t needed or done in collaborative.  If the team wants documents or information, they get it, often very quickly.
  3. Third party discovery (e.g. employer, banks) – Not needed in collaborative.
  4. Responding to interrogatories and document requests – Not needed in collaborative.
  5. Document Production – In collaborative, the neutral financial professional typically handles organization, indexing, and summarizing essential financial documents & information.
  6. Depositions:
    • Party1’s deposition – not done in collaborative.
    • Party2’s deposition – not done in collaborative.
    • Nonexpert Witnesses – not done in collaborative.
  7. Expert Depositions
    • Party1’s expert’s deposition – not done in collaborative.
    • Party2’s expert’s deposition – not done in collaborative.
  8. Discovery Motions – not done in collaborative.

D.  Mediation, Trial Preparation, and Trial

  1. Mediation Statement and Conference – On occasion, collaborating teams use collaborative mediation to work through “sticky” unresolved issues after most others have been resolved.
  2. Pre-trial Statement Preparation – not done in collaborative.
  3. Witness List Preparation – not done in collaborative.
  4. Exhibit List Preparation – not done in collaborative.
  5. Preparation Fact Witnesses – not done in collaborative.
  6. Preparation Expert Witnesses -not done in collaborative.
  7. Written Motions and Submissions (e.g., Motions in limine) -not done in collaborative.
  8. Other Trial Preparation and Support – not done in collaborative.
  9. Trial and Hearing Attendance – not done in collaborative.
  10. Post-Trial Motions and Submissions (e.g., proposed findings of fact, conclusions of law, final judgment, motion for rehearing, motion for reconsideration) – not done in collaborative.

E.  Appeal and Remand – not done in collaborative.

  1. Appellate Motions and Submissions
  2. Appellate Briefs
  3. Oral Argument
  4. Remand – Insufficient findings, incorrect ruling.

F.  Expenses

  1. Expert Fees (evaluator, Guardian Ad Litem, accountant) – A GAL is not needed in collaborative.  Occasionally, an evaluation might help the process.
  2. Private Investigator – Not needed in collaborative.
  3. Travel to depositions, hearings, and trial – Travel in collaborative is to meetings and to a final hearing, if the judge even requires an appearance.
  4. Transcripts and Video copies – Not in collaborative.
  5. Demonstrative Exhibits, PowerPoints, etc. – The financial neutral typically presents worksheets & exhibits using standard software.  
  6. Copying, etc – Greatly reduced in collaborative practice.
  7. Other (Including Filing Fees)
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