The collaborative process seeks to insulate and limit the role of the collaborative lawyers and retained experts in order to ensure that a party cannot attempt to use the collaborative process to gain tactical advantage.
Collaborative lawyers and experts in a collaborative process necessarily learn a great deal about the parties and their goals and interests, as is intended to facilitate an agreed upon resolution of the dispute which is beneficial to all parties. It is because of this unusual access that separately and jointly retained experts have to the parties and to all information, that retained experts are precluded from testifying as fact or expert witnesses in any adversarial proceeding among any of the parties to the dispute. Likewise, retained experts work product and opinions are not discoverable in an adversarial proceeding.
Consequently, a party should not engage any person as a
retained expert that the party might wish to use as a testifying expert in an
adversarial proceeding among the parties. If the parties want to introduce the
findings of a retained expert in an adversarial proceeding, they may do so by
stipulation.
Why is a Collaborative Process Best for High Asset Divorces? Because the process itself promotes resolution rather than adversarial argument. Once the parties have ALL the Information, they are free to choose a resolution they desire, rather than being forced to fight every minor battle for some perceived advantage only to be encouraged to fight more for more advantage so they can fight for more.
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