Litigation versus Collaboration

CollaborationLitigation will cost a lot of money, often hundreds of thousands of Rand. The litigated process demands that a set series of processes take place and it takes up a huge amount of time for attorneys to comply with the process and rules.

Advocates are often appointed in addition to attorneys and whole days can be spent in court at a time. Each party wants to prove their case, which is what they believe they are entitled to. Often at the very end, after fighting for so long and hard they either settle or a magistrate or judge will often simply split what each party wants in half, unless one party was very unreasonable.  Why go through all of that?

Attorneys have a mandate to act on the client’s instructions. The clients in turn do not realise that there is another option available to them, namely, the collaborative divorce process, so the clients and the attorneys are involved in a complex litigation process that is not necessary.

It is up to clients to step out of this. It is for clients to arm themselves with information and to choose the collaborative process.

Clients don’t yet understand that they can achieve the same results for a fraction of the costs, where each party retains their dignity, they and their spouse and their children can feel safe during the entire process and there is no blame, fear, persecution or manipulation.  Each party will obtain what is fair. It is the same results but just a vastly different process.  They can all win.

In a collaborative divorce process, the parties have control and input in how their divorce is handled from start to finish and they co-operate with their spouses. If they have children, they will have to learn how to co-operate after the divorce to sort out the children’s maintenance and visitation in any event.

No one really wins if clients litigate with the intention of taking revenge.  The client ends up paying the attorneys and advocates a big part of their estate and they often end up in exactly the same position they would have been, had the two of them let go of their hurt, anger and need to take revenge and settled up front.

The collaborative process gives clients a settlement in two to six meetings. The first meeting is merely to set the boundaries and rules.  It is a safe and secure process as the clients can stop it at any time and convert back to the litigation process and then they cannot use the same two attorneys, social workers or psychologists. They can say what they like and it cannot be held against them later. They freely agree to disclose instead of getting the court to compel them to disclose.

Won’t you feel more safe and secure when you are in control, rather than have a court making decisions about your affairs and your finances? Don’t you want to save money? You can act like a vindictive bully, but is it worth R 500,000 to act that way? The collaborative process offers you control, dignity, respect and certainty. There is no dirty playing by the other side or pressurised time limits and you save thousands in the process. Your children will love you!

In the collaborative process you each have your own attorney and they contract not to litigate at all. In the unlikely event that the two of you do not settle, then those attorneys will fall away and you will appoint new attorneys to litigate. Everything you have said and all documents you have shown in the collaborative process are confidential and may not be used in the litigation process.

You and your spouse are both present at all the meetings, have insight into exactly what is happening with the divorce and you have direct input and control – unlike the litigation process, which by design is difficult to understand if you are a lay person.

In the litigation process you don’t see where your money is spent or the hours that your attorney spends in preparing your case. There are dozens of unnecessary court procedures such as round table meetings where four professionals, being two attorneys and two advocates are paid per hour. These meetings are usually held behind closed doors in your absence. How do feel about having no control over the litigation process? The biggest decisions in your life put in a legal system which you don’t understand with an attorney that you may not even know that well?


Written for by Renette Rauch (Collaborative Divorce Attorney – Cape Town)