In Collaborative Divorce, the parties and their respective attorneys sign a legally binding contract in which they agree not to take the case to court.
Collaborative Divorce has the potential to change the culture of divorce itself. To get a sense of what it’s like to divorce collaboratively, take a few minutes to watch this Collaborative Divorce Video which illustrates so well the experience and benefits of working together amicably. If you can, persuade your spouse to watch too.
The Nature of Conventional Divorce
Those who have been through a highly contentious divorce will typically say the experience was emotionally wrenching, anxiety producing and extremely expensive. They may also tell you the lawyers contributed to these problems by heightening conflict and escalating arguments over the placement of children, division of property and payment of support, all the while charging substantial legal fees.
Divorcing families are in crisis. Unfortunately, the conventional legal process seeks to resolve that crisis in a manner which typically intensifies conflict. Many divorce lawyers perceive their job as to “win” for their client. In this context, winning is usually defined as obtaining the largest share of whatever it is that can be measured (such as money, time with children or power to make parenting decisions). However, such an approach disregards intangible assets such as good will between the spouses, their ability to parent together, and the children’s love and good feelings toward each of them.
Focusing on What’s Truly Important
When something isn’t valued, it tends to get overlooked and ultimately trashed – which is particularly sad in divorce cases, where intangibles are often the most valuable assets of all. As a result, conventional cases can lead to bizarre and counterproductive results where, in seeking to “win,” everyone loses. For instance, people may eviscerate their ability to parent together; inflict immeasurable emotional damage upon their children, scarring them for life; shatter all good feelings and positive memories of the marriage; expend enormous sums of money; and even bankrupt themselves in the process. And while not every conventional case is this horrendous, it’s rarely a positive experience. Those people who somehow manage to stay amicable in a conventional setting do so not because of the process but despite its many flaws.
Fortunately, there are alternatives. One of these is Collaborative Divorce. Unlike Mediation, in which a neutral third party trained in conflict resolution techniques helps the parties resolve their differences (though they may still have their agreements prepared or reviewed by counsel), in Collaborative Divorce each spouse must be represented by his/her own attorney. The attorneys themselves must be trained in Collaborative Divorce, which is in many ways similar to the training of mediators. (In my opinion, the best Collaborative Divorce attorneys are usually experienced mediators too.) With either approach, spouses work together to reach agreements on parenting and financial issues with the focus on meeting the needs of all family members.
How it Works
In Collaborative Divorce, the parties and their respective attorneys sign a legally binding contract in which they agree not to take the case to court. In the event they do not succeed in settling their differences, both lawyers must withdraw and both clients must start over. That’s the risk of doing a case collaboratively. It’s one of the reasons collaborative attorneys must be skilled in choosing and facilitating collaborative cases. However, as previously explained, there are enormous risks in doing a case conventionally, such as the likelihood of scorched earth and financial ruin.
The signing of an agreement to collaborate has the effect of placing everyone on the same team since spouses don’t want to lose their investment and have to start over again, while attorneys don’t want to lose their clients or fail them. With this agreement in place, neither side can say to the other, as is so typical in conventional divorce cases, “That’s our final offer; if you don’t like it, we’ll see you in court.” Now, for the first time, it’s no longer “us” against “them.” There’s just one team, with everyone working together to resolve issues that belong equally to all of us. From this point forward, no proposed solution can work for anyone unless it works for everyone.
As stated above, collaborative attorneys receive specific training in Collaborative Divorce. Since it’s a very different way of practicing than conventional divorce, learning to do it well can require an enormous paradigm shift, particularly for experienced and skilled litigators. Thus, it’s important that attorneys be not only well trained but experienced in Collaborative Divorce and well suited to this type of practice. It’s also particularly important that the attorneys on both sides trust each other and work well together.
The collaborative process is designed to provide emotional safety for spouses and children. The parties and their lawyers meet in a series of four-way meetings. Other professionals – such as psychologists who focus on divorce-related issues or the needs of children, and financial advisors – may be employed as well. These professionals are trained in Collaborative Divorce and jointly chosen to provide input and guidance rather than take sides. Such assistance can be invaluable both in achieving win-win agreements and in helping spouses and children feel safe, thus allowing the process to flow smoothly even when difficult issues arise.
We’ve covered how valuing tangible assets while ignoring intangibles can harm families. In Collaborative Divorce, clients are encouraged to consider the value of all assets. Things like home equity, bank accounts, pension plans and the like have worth. But so do things like good will and the ability to parent cooperatively. It’s not my job, as an attorney, to tell people how to weigh intangible assets against tangibles, but simply to remind clients that both have value. It’s up to them to choose how to balance one against the other. However, because intangibles remain on everyone’s radar, clients are far more likely to recognize their importance, and thus preserve and build upon common interests. In Collaborative Divorce, we say “It’s easy to value a pension plan but what is it worth to dance at your daughter’s wedding?”
Working together in this way, seeking win-win agreements, each spouse is likely to feel ownership of the final result. Thus, once a settlement is entered, the parties are unlikely to ever need the court to enforce or modify its terms. Since it’s their agreement, they feel fully vested. When people feel vested, they will typically comply with (and even defend) its terms, and renegotiate in good faith as the children’s needs change.
This process, done well, frequently results in a great deal of emotional healing, leaving former spouses feeling good about each other, and leaving them in excellent position to work together in parenting their children.
Mediation and Collaborative Divorce Compared
Many of the Collaborative Divorce principals and processes discussed above are incorporated into mediation as well. The main differences are that in Collaborative Divorce:
- each spouse is represented by an individual attorney who is specially trained in the collaborative process;
- parties can obtain individualized legal advice from their respective attorneys;
- a team approach is utilized that more easily integrates child specialists, divorce coaches and financial planners; and
- the attorneys draft and review legal documents.
Some spouses feel more comfortable with the collaborative approach because it provides the added support of a lawyer for each party who can advise and protect his or her client and also prepare and review legal documents. The input of other skilled professionals, such as child specialists, divorce coaches and financial planners is seamless in the collaborative framework, and this can be extremely helpful in resolving particularly difficult conflict. However, when the level of conflict is not extreme and/or the issues less complex, mediation may achieve an equally high quality result in a more cost effective manner.
In my experience, Collaborative Divorce – with its ability to seamlessly bring the support of attorneys, therapists and financial planners inside the divorce process – has the greatest capacity to produce outstanding results. Still, not every family needs this level of support. The bottom line is obtaining a great result. Saving money is, for most families, important. At the same time, since parents will be connected for the rest of their lives – through graduations, weddings and grandchildren – achieving win-win settlement yields dividends that far exceed whatever expense may be incurred.
Keep in mind that when divorce is done well, children benefit most of all. When both mother and father can be at birthday parties, school activities, graduations and weddings – with ease and comfort – and when the children themselves can love freely, without any sense of having to take sides, the benefits (to everyone involved) are beyond measure. Therefore, my view is it makes sense to invest in Collaborative Divorce if it is likely to result in a significantly higher quality settlement than mediation.
When the level of containment available through Collaborative Divorce is not necessary, mediation will lead to excellent results. Some couples may even be able to negotiate quality settlements on their own, perhaps engaging attorneys only to prepare documents and make sure all agreements are faithfully executed.
I strongly recommend making sure all settlement documents and court pleadings are prepared properly. All too often, a client comes to me for help fixing those documents and pleadings that did not properly reflect the terms of the agreement he or she thought had been reached. This can prove difficult, expensive and sometimes impossible. Therefore, doing it right the first time is really important.
Whichever method is employed, the financial and emotional costs of a mediated or collaborated divorce are likely to be substantially less than those of a conventionally litigated divorce, and the benefits of these approaches are profound. When people retain control over the final settlement by negotiating its terms, they feel a sense of satisfaction and ownership over their agreement. Even if they’ve had to make difficult concessions, they’ve chosen where to give and where to hold firm. As a result, the spouses are unlikely to wind up in court seeking to enforce or modify the terms of their agreement.
Spouses who negotiate win-win settlements feel good about each other. As a result, they are well positioned to share parental responsibilities and fully participate in the lives of their children. Even after the children are grown, the benefits continue as they will find it easy to be present at graduations, weddings and in the lives of their grandchildren. The children have been protected from the contentiousness of adversarial divorce which can otherwise leave lasting scars. And such positive approaches typically take less time and cost far less than full blown litigation.
Both mediation and Collaborative Divorce can also be used in other types of family law cases and if issues arise after the divorce is final, regardless of whether the original case was negotiated or litigated.