The next stop along the Spectrum of Control, if kitchen-table negotiations clearly aren’t going to work, is collaborative divorce.
Collaborative Divorce – A No-Court, Solutions-Based Approach
How can you divide twelve oranges in half and still give both parties twelve oranges? Depending on the part of the orange each wants (the zest or the meat), the division can be fast, simple, and mutually gratifying—as long as both parties understand what is valuable to the other. In a nutshell, or perhaps one should say “under the peel,” this is the appeal of collaborative divorce law in settling divorce cases.
Collaborative divorce is a new way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court. In a collaborative divorce, each spouse has the support, protection and guidance of his or her own lawyer. Often, other professionals such as child specialists, financial specialists and divorce coaches will be brought in to advise on matters in their areas of expertise. Lawyers practicing collaborative divorce have competed extensive training in nonadversarial conflict resolution strategies, and clients commit to seeing the process through, or starting over with new lawyers (and new bills!) if negotiations break down.
The vast majority of all divorce cases are settled outside of court anyway, so it stands to reason that nationwide, collaborative divorce law is attracting considerable attention as a proactive and humane settlement option. And so it should! Studies show that when carried out as agreed upon by divorcing individuals and their attorneys, the collaborative process settles issues faster than other forms of negotiation, and greatly reduces the emotional trauma families experience in the throes of a divorce, especially the children. It also significantly lowers the expenses incurred by divorcing couples, protecting families from unnecessary resource depletion at a time when funds are needed to establish two households.
Collaborative Divorce is not a dispute resolution option in the same sense as mediation or arbitration. Rather, collaborative divorce is a set of voluntary ground rules entered into by divorcing couples and their attorneys. It is a client-centered, interest-based negotiation model for resolving disputes. While the details vary from practitioner to practitioner, the central idea is that the parties retain attorneys who agree in advance not to take the case to trial, and who agree to full disclosure of information. You and your attorneys forswear litigation and, in the end, if your case cannot be settled and you decide to litigate, you both have to hire new attorneys, as outlined by collaborative divorce rules.
The collaborative divorce model was developed in the early 1990s by a practicing family law attorney who saw the need for a kinder, gentler alternative to the adversarial system. He developed a training program and began teaching lawyers all over the country how to both practice and replicate his system. At the same time, collaborative resource organizations sprang up, enabling practitioners to both rely on and, to a certain extent, hold each other accountable. Most states now have networks of collaborative lawyers who have been trained in the system, and have met the standards of practice laid out in the original materials.
If you are the kind of couple that is determined to hire lawyers only if you can’t work it out and things gets really ugly, then collaborative divorce may very well be for you. This process allows you all the benefits of legal counsel without the threat of a court battle, or some of the other negative aspects of involving combatant lawyers in your divorce process. Engaging in the collaborative process may also reduce some of the stress and tension in your personal life, as you are going through the process of divorce and trying to establish the groundwork for a new beginning.
Collaborative divorce lawyers help you make knowledgeable decisions about financial issues. For example, they advise you about the hidden pitfalls of the tax code and the intricate rules imposed by the US Department of Labor and Internal Revenue Service governing retirement plans. They make sure you don’t make document drafting mistakes that cost both parties in ways they didn’t expect. Collaborative Divorce lawyers make sure you understand the law, your rights, your obligations, and the legal effects of your decisions. They also help make the process of separating your assets more peaceful, as they focus on positive communication methods and making requests versus demands from the other party. There is a strong focus on respect throughout this process, and that is one of the many things that make it a potentially great option. This approach is much less difficult for everyone and helps build a rapport between the two sides instead of potential bitterness. Collaborative divorce gives you all of the benefits of good legal representation without the potential negative factors involved with other options, such as arbitration or litigation.
The Collaborative Divorce process requires that both your lawyer and your spouse’s lawyer be trained in collaborative divorce. Lawyers must undergo specialized instruction to develop collaborative negotiation skills. The governing body that teaches the collaborative process is the International Academy of Collaborative Professionals; this group also maintains a current list of practitioners. Use that list to have a conversation with your spouse, and agree to each meet with a lawyer from the list. There are all kinds of lawyers on the list, and you should be able to find someone with the knowledge, experience, personal characteristics, and personality you are seeking.
Collaborative lawyers are trained and skilled in collaborative law to create an open environment that encourages the peaceful resolution of issues. Like arbitration, collaborative law requires all parties to sign a document. This is called a Collaborative Law Agreement and states that the parties commit: 1) to resolve the issues outside of court, 2) to honestly communicate all relevant facts and financial matters, and 3) to disqualify their attorneys from further representation if the matter is not resolved collaboratively. The first and third statements above can easily be managed. However, it is important for couples to understand up front that each is entrusting his/her soon-to-be former spouse to be honest in the negotiations. Unfortunately, the attorneys have a limited capacity to ensure this honesty. You certainly want to feel confident that your spouse will commit to and follow through with complete honesty and openness, just as you must also commit to do.
As a first step, both the divorcing couple and their attorneys will sign a pledge to participate in the collaborative law process. This will occur before any negotiation begins. The pledge details several principles and guidelines that you all must agree to comply with in order to continue on the path to collaborative divorce.
There are typically about ten sections in the pledge covering a variety of issues. The first section generally outlines some goals to which both parties must agree, such as the idea that a “nonadversarial process” is best to use when resolving conflict, and that there will be a focus on the future well-being of the parties and their families by maintaining an atmosphere of honesty, cooperation, integrity, and professionalism.
The second section of the pledge usually outlines that both parties must agree to no court intervention, as well as to give full and honest disclosure of all information, regardless of whether it’s requested or not. Agreeing to participate in mediated settlement conferences, where you will not only express your own needs and desires, but will also hear and recognize the needs and desires of the other party, is also outlined here.
Section III of the pledge acknowledges that any third parties, such as accountants, therapists, or appraisers that are brought in to resolve any issues that may arise will be retained jointly and directed to work in a cooperative effort to resolve the issues.
When it comes to children, while going through the collaborative law process, parents agree to insulate them from involvement in the dispute and not to seek a custody evaluation unless agreed to by both parties. The goal is to resolve any parenting issues in the most amicable manner possible and in the best interests of the children. Section IV of the pledge outlines these goals regarding children.
Section V outlines some of the limitations of the collaborative process. For example, it is a voluntary process, and there is, of course, no guarantee that it will be successful in resolving the case. Although this process can promote healing and growth, it will not necessarily resolve certain feelings and concerns that led to the current conflict.
“Integrity and Good Faith” is the title of the sixth section, and it outlines the idea of “working to maintain a high standard of integrity” and “specifically to not take advantage of the other parties’ mistakes or miscalculations, but rather to disclose them and seek to have them corrected.” Acting in good faith and protecting both parties’ integrity is one of the key underlying goals of the collaborative process and is absolutely necessary in order for it to be successful.
If either attorney feels that his or her client has “intentionally withheld or misrepresented” information in a way that goes against the principles of the collaborative process (rightly or wrongly), he or she may withdraw from the case. Both parties must agree to this, and in Section VII, the provisions of what may be perceived as “withheld or misrepresented information” are outlined.
Section VIII reiterates the idea that both attorneys can never represent their clients in court. If a resolution is not reached through the collaborative process and the parties decide to take the issues to court, they must hire new counsel.
If either party decides that the collaborative process is “no longer appropriate,” then the process may be terminated by written notice to the attorneys. Section IX explains this and also states that the process may be terminated if either party files an action or motion in court.
The last section is the actual pledge, which states, “We, the undersigned, pledge to comply with and to promote the spirit and written word of this document.” By signing this pledge, the divorcing couple promises, “In an atmosphere of honesty, cooperation, integrity, and professionalism, we will focus on the future well-being of the parties and their families in reaching a settlement.”
For many couples, collaborative divorce is a way to avoid litigation and come out of a divorce cooperating on child issues and finishing financial issues in a way that the parties were never able to do during the marriage. People learn new skills to cooperate and communicate. It not only ends the marriage in a positive way, it prepares folks to move forward with their lives and make new relationships work rather than falling back into old patterns. And if there are children involved, the collaborative process lays the groundwork for a more constructive relationship between the divorced parents as the children grow up. Collaborative divorce can help some people see divorce as a learning experience, rather than a total catastrophe.
Like mediation and arbitration, collaborative law attempts to maintain a civil relationship throughout the negotiations process, as well as after an agreement is reached. Other experts are brought into the collaborative process as needed, but only as neutrals jointly retained by both parties. If either you or your spouse becomes uncomfortable in addressing a particular issue, a mediator may be consulted to help with the collaborative process. If the mediator fails to bring closure, or if you or your spouse decides not to attempt mediation, you both must hire new counsel and deal with the unresolved issues in either arbitration or litigation.
Though the negotiations of collaborative divorce often help divorcing couples put their lives back in order, the process is not appropriate for all situations. Couples entering into a collaborative process should feel confident that both parties will be honest and forthcoming throughout the negotiation process.
And if everything works out as planned, both husband and wife take home twelve oranges. What a positive way to begin again in life!