Collaborative Divorce is a method of dispute resolution in which parties and their lawyers commit themselves to negotiating and resolving the issues of their case fairly, in a non-adversarial manner, without going to court. The process is known by several names: Collaborative Law, Collaborative Divorce, or Collaborative Practice. Throughout the process, each side is represented by legal counsel; and, importantly, the collaborative attorneys pledge at the outset that they will not institute or participate in contested court proceedings. Thus, an important hallmark of the collaborative process is that agreement is reached through cooperation, discussion and negotiation, without the cost, aggravation and uncertainty of adversarial litigation in court.
As with mediation, many parties choose Collaborative Divorce because they want to avoid adversarial proceedings in court and the complexity of formal litigation. As with mediation, problems are solved through good faith negotiation, based on the identified needs and interests of each party. Divorce mediation, however, is conducted by a neutral mediator, who may not give legal advice. Although parties may engage “consulting attorneys” in mediation cases, those lawyers typically do not directly participate in the settlement negotiations. By contrast, in a Collaborative case, each party is protected by having his or her own counsel directly involved in all settlement discussions/negotiations and in all phases of the process. There is no mediator.
Collaborative Divorce differs from the traditional divorce process because of the absolute commitment of the parties and their attorneys to resolve disputes out of court. The Collaborative Divorce attorney commits to guide the process to settlement or withdraw from further participation. This disqualification of counsel from participation in adversarial proceedings reinforces the shared goal of the parties and of their collaborative lawyers to cooperate with one another in order to successfully resolve the case. Collaboration can thus result in a substantial savings of time and legal expense to the family, as well as a reduction in conflict and stress.
Collaborative Divorce also differs from traditional approaches to divorce, because it commonly utilizes an interdisciplinary team of professionals to help the couple navigate their way to a comprehensive settlement. The team approach recognizes that, for the divorcing couple, divorce is much more than just legal rules; personal emotional and philosophical concerns invariably play a significant role in decision-making and in the ability of one or both spouses to actively and effectively participate in settlement discussions. Our experience has taught us that much divorce litigation, and a high percentage of the resulting legal fees in highly litigated cases, results from unresolved (and often unrecognized) emotional issues of one or both parties, rather than from complex legal or factual disputes. Other common impediments to settlement are poor communication between the parties (and sometimes between their lawyers) leading to misunderstandings (and thus conflict), and parties’ limited or uneven ability to understand or analyze financial issues. The purpose of engaging an interdisciplinary team is to help each of the parties understand those issues, to provide them with tools for overcoming such problems, and to facilitate effective communication between the parties. The aim is for each party to effectively participate in their settlement conversations and negotiations.
In addition to the lawyers, a Collaborative team typically consists of a Collaborative coach or coaches (generally one for each party), a neutral financial specialist, and, where minor children are involved, a child specialist. Parties work with their divorce coaches to identify and better understand their individual goals and needs, to improve their communications skills with one another, and to develop self-management tools as appropriate. The divorce coaches often help parties discuss the needs of their children and to develop a parenting plan, as well. A child specialist can meet with the children as a neutral, provide a voice for the children in the process, and be available to assess special needs of the children, which may result from the divorce or otherwise. The financial specialist assists the parties and the lawyers in gathering necessary financial information (generally more efficiently than overlapping data gathering by two separate attorneys). The financial specialist also works closely with the couple and their counsel to develop understanding of future financial needs and the economic consequences of settlement scenarios.
Where an interdisciplinary team is used, questions inevitably arise about the cost. Although Collaborative Divorce may be more expensive than the simpler mediation process, Collaborative cases are often less costly than litigation, and far less expensive than high conflict litigation. Many couples see significant advantages in the resources and support provided by the Collaborative team approach, and believe their prospects for success in this process may be greater than they would be in mediation. By design, Collaborative Divorce can operate to defuse conflict, enhance understanding, and encourage cooperation, all of which has a positive effect on the cost of the proceedings.
The goal is to find the most effective way for parties to proceed to a fair settlement.
Tom Borst has received extensive training in Collaborative Divorce and has significant experience in resolving Collaborative cases. Feel free to call us to discuss your interest and to get more information.