Divorce Articles

COLLABORATIVE DIVORCE – A BETTER WAY FOR YOU?
By John R. Denny

Collaborative Divorce is a relatively new process in which couples agree to resolve the issues in their divorce without resort to the court. In Collaborative Divorce, the parties, along with their attorneys and other team members, agree to work together to achieve a result which is in the best interests of the family as a whole. This article will explain the distinctive aspects of family law, compare it to litigation and mediation, and examine why it may be a better process for you or your clients.

What is Collaborative Divorce?

Collaborative Divorce is defined by its agreement not to use the court for decision-making purposes. The court is, of course, utilized for the basic filings (Petition, Complaint, Response, etc.), for interim, stipulated orders, and finally for entering the judgment to give it the force of law. Otherwise, the parties, and their professionals, agree to stay out of the court.

In Collaborative Divorce, the parties sign a "Participation Agreement" which sets forth the "rules" of their collaborative process. The rules include disqualifying provisions providing that, if the process fails, and the parties resort to litigation, the collaborative professionals must withdraw, and the parties must obtain new professionals, or represent themselves in court. Other normal provisions in the Participation Agreement require the "full, honest and open" disclosure of all information, negotiation in good faith, participation in informal discussions in conference to settle all case issues, and a direction from the clients to the professionals to work in a cooperative manner to resolve issues without resort to the court, or another external decision-making process, except as agreed by the parties.

Collaborative Divorce is designed to identify both parties’ priorities, goals, needs and interests, and to facilitate creative proposals from the parties and their professionals in order to resolve the issues and meet the parties’ goals. The parties and their professionals cooperatively participate in a series of negotiations to identify and solve their divorce issues, including child custody, child and spousal support, and the division of community assets. The parties are not limited to the solutions a court might be able to reach. The parties may discuss what a likely litigated result would be, but are not permitted to threaten litigation in order to further their positions.

The Collaborative Team

Depending on the issues in the particular divorce, the collaborative team consists of the two parties, an attorney for each of them, a divorce coach (either one for each of the parties, or a neutral coach to work with both of them), a financial professional, and a child specialist. The following is a brief discussion of each of the team members, and what they bring to the process:

• Parties
  The parties are the most important team members. It is their divorce. The parties must commit to participate in the process. Without their commitment, and wholehearted participation, the process will not work. Collaborative Divorce is, after all, an alternative process. It does not happen unless both parties agree to it. It is also a client-driven process. The process will go as fast, or as slow, as the clients choose. Because there is no resort to court, there is no court calendar to drive the process. A potential advantage to Collaborative Divorce is that the process can be (and experience shows often is) shorter than a litigated case. However, there is no judge banging a gavel and declaring a result. Thus, there is no conclusion until the parties agree on the issues, and sign a judgment setting forth their agreement. Thus, the case will last as long as the clients decide.

• Attorneys
  In a collaborative case, each party is represented by an attorney. The attorneys’ obligations are to work with their clients, and inform their clients as to the issues in the case, and the law as applied to those issues. It is common for a collaborative attorney to tell his or her client what a court could do with a particular issue. This gives the client a base from which to conduct the negotiations. While an attorney in a collaborative case maintains his or her duties to the client, in the Participation Agreement, the client directs his or her attorney (and other professionals) to work in a cooperative effort with the other side. Often, this entails the attorney proposing solutions which are different than what a court would do, and which are designed to be in the parties’ mutual interests, and in the interests of the family as a whole.

• Coaches
  In the collaborative process, coaches are psychologically-trained counselors or therapists. There are collaborative models in which each party has his or her own coach, and in which the parties share a coach. In either model, the coach is there to help the parties with the emotional issues which are a part of every divorce, and to help the parties communicate with each other in constructive ways. The coaches help the parties understand their needs, listen to the needs of the other party, and stay focused throughout the negotiations. This is designed to reduce normal anxiety associated with the divorce process, and to facilitate the formulation of a mutually beneficial resolution. Often, by helping a party identify his or her emotional attachments and needs, the coach can help the team identify the necessary components to a resolution.
  
  Another important function of the coach is to assist the parties in communicating with each other. Often, in a marriage which has broken down, the parties fall into a pattern of communicating facts in a way which is laced with negative emotional baggage. Any fact can be communicated neutrally, in a way in which the other side will take positively, or in a way which is designed to irritate the other party. The coach works with the parties to identify these negative communication patterns and to overcome them in the negotiation process. If a coach can succeed in this battle, the coach can facilitate a much quicker, more productive process. The parties will also learn to identify their patterns, and can acquire skills which will assist them beyond the divorce process.

• Financial Professionals
  Depending on the complexity of the parties’ estate, an accountant or financial advisor is retained to identify the parties’ assets, value them, work with the parties to determine their on-going needs, and propose alternative solutions by which the parties’ needs can be met. The parties work with the financial professional to provide all records and other relevant information. There is no formal discovery process in Collaborative Divorce. Thus, the parties are required by the Participation Agreement, to provide all information voluntarily, and to fully disclose all material facts regarding their finances.

• Child Specialist
  In cases involving children, there is often a child specialist retained by the parties. This person is a trained mental health professional whose job it is to meet with the children, assess their needs and desires, and to participate in the negotiation as a "voice of the children." This allows the parties and their professionals to hear the needs and concerns of the children, without directly involving the children in the process.

Collaborative Divorce Compared to Litigation

In a litigated divorce, there is a judicial officer who decides the case issues if the parties do not agree on a settlement. There is no such person in a Collaborative Divorce. Thus, the parties must ultimately agree and settle their issues. Also in litigation, there is a court to enforce discovery disputes and make interim orders as necessary. In Collaborative Law, the parties are expected to voluntarily provide all material information, and any interim agreements must be reached by the parties voluntarily.

In litigation, there is a court calendar with which the parties must comply. If one side files a motion, or an At-Issue Memorandum, it sets in motion a clock to which the other party must respond. In Collaborative Divorce, both parties must agree to have a conference, and must participate in it. This also can make a Collaborative Divorce much quicker. The parties do not have to wait for court availability to settle their issues. Courts are also over-crowded, and busy. Many times parties have a need to be heard on the facts of their cases. There may be a greater opportunity for this to occur in Collaborative Divorce than in court.

Some clients are concerned that, due to the number of professionals potentially involved in a collaborative case, the cost may be greater than in litigation. Experience has shown that collaborative cases take less time than similar litigated cases. Some surveys have shown that collaborative cases are less expensive overall than litigated cases. One Canadian study has reported that the parties have a generally high degree of satisfaction with the result in collaborative cases.

(See http://www.justice.gc.ca/eng/pi/pad-rpad/rep-rap/2005_1/p11.html)

Collaborative Law v. Mediation

Mediation, like Collaborative Divorce, is a client-driven process. Nothing happens until the clients agree on a resolution. Generally, in family law mediation, the two parties meet with one neutral mediator, who helps them reach an agreement on all issues, and drafts the agreement for them. Usually, the parties do not have independent representation. Thus, the parties are without independent legal advice. While the mediator may give some general guidance about what a court would do, he or she is not either party’s legal counsel. Mediation works well where the parties have similar degrees of sophistication with respect to their finances, and have similar negotiating abilities.

In Collaborative Divorce, each party has his or her own attorney, and the collaborative team. Thus, where there is an imbalance in the parties’ financial sophistication, or in negotiating power, the team approach, and the party’s own attorney, can mitigate that imbalance. Each party gets independent advice as to the legal issues concerning the divorce. Each party is represented in the drafting of the settlement agreement, or judgment. Thus, the parties may have greater confidence that their interests are protected, and achieved, in the collaborative process.

The collaborative process is likely to be more costly than mediation, because of the greater number of professionals. However, in both processes, the expense is tied to the amount of time the agreement takes, which is within the parties’ control.

Collaborative Law is not for Every Case

Not every case is well-suited to Collaborative Divorce. Where one party has psychological issues which will keep that party from negotiating in good faith, or from reaching agreement, the collaborative process will fail unless those issues are overcome. While the party will be assisted by a Coach, the collaborative process is not therapy. Also, if one party will not participate in good faith, then Collaborative Divorce is not ideal. If the parties believe that they will never be able to agree on anything, then it may be better for a court to decide their issues. However, if the parties will commit to the process, and give it a chance, they may find a better way to get a divorce.

Conclusion

Collaborative Divorce is a new process on the divorce scene. It allows parties to resolve their divorce issues with the help of trained professionals. The parties potentially have more say in the resolution of their cases, and can be more creative with their settlement than a court could be. The collaborative process can also equip the parties with skills which will go with them beyond their divorce. Ideally, this will allow them to communicate effectively with the other party with respect to many inevitable, post-divorce issues. This is especially advantageous in a case where the parties will continue to co-parent children. However, in any case where the parties have mutual friends, and family connections, they will be better off if they can peaceably co-exist.

(Back to article list)