A kinder, gentler way to end a marriage. Robert Wildau in an article, Making Sense of Collaborative Law, which I found on the Internet, said he saw the term collaborative law as a “contradiction in terms.” “Lawyers go to court to find out who’s right and who’s wrong, so what’s to collaborate about? Or, if people are truly collaborating, why do they need to resort to law at all?” he wondered. I had similar thoughts when a colleague asked me to consider writing about collaborative divorce. It’s an oxymoron — another way of saying “contradiction in terms.” I said, if people can collaborate, why are they getting a divorce?
As I did the research, I recognized that the process of collaborating in a divorce would be a healing one. Some of the processes established in this structured method of coming to agreement are similar to the ones I use to help people stay together. I wonder if people ever start a collaborative divorce and then decide they can make it in marriage after all.
Various writers refer to this Collaborative Family Law (CFL) as revolutionary. It is indeed a drastic change from the usual model. What are its advantages over the more traditional, adversarial, court model of divorce? In an article titled The Basics of Collaborative Family Law—A Paradigm Shift, published in the American Journal of Family Law, Vol. 18, No. 2, Summer 2004, Sherri Goren Slovin describes the adjudicatory system as one for dealing with “criminal cases, commercial civil disputes, constitutional challenges and negligence actions . . . The court system by its nature is adversarial and contrary to the fostering of goodwill and cooperation needed in continuing parenting relationships.”
By getting involved in that adversarial approach to divorce, the couple is in danger of becoming even more estranged, and this is counterproductive to effective parenting. Research indicates that children are most injured by the parents who “use” them in continuing hostilities after divorce. CFL, in contrast, actually promotes the goodwill and cooperation that is necessary for a couple to continue to care for their children cooperatively and adequately. Typically, the couple has several options for deciding the terms for the ending of their marriage. These include a mutual agreement on their own, mediation with outside help, CFL, lawyer negotiation and, finally, litigation — a court trial. Collaborative divorce has a structure that in itself provides a sense of security in the process. At the core of this structure is the agreement that neither attorney will take the case to court. The lawyer will usually check out whether there is substance abuse, domestic violence or mental illness within the marriage. The CFL process focuses on the empowerment of the clients. This may be impossible in such marriages. If the decision is to go forward, it may be essential to include mental health professionals on the team.
Each lawyer will review the Participation Agreement with her or his client. Fundamental to this agreement is the provision that the lawyers agree, as stated above, not to participate in court intervention in the case. If the parties abandon the CFL process and decide to go to court, they will each have to get different attorneys. This increases the attorneys’ motivation to make the process work. One of the lawyers files the case in court to satisfy the statutory waiting requirement in the state.
Robert Wildau lists other typical provisions in the Participation Agreement that the lawyers will:
• Cooperate in providing disclosure and discovery.
• Model for their clients a commitment to honesty, dignified behavior and mutual respect.
The parties to the divorce agree:
• Not to ask or expect their attorneys to advance unethical or illegal positions.
• To make full and fair disclosure to their attorneys and each other of all pertinent facts.
• To communicate respectfully and constructively with each other, discussing settlement only in conference — not at unannounced times by telephone or unannounced appearances.
(From Making Sense of Collaborative Law, an Internet article.)
Slovin describes ground rules, or ‘process anchors,’ which help the clients stay focused and productive during the four-way sessions. They include reminding clients to focus on the impact of the way in which they communicate during the negotiation process. They focus clients on recognizing the futility of arguing by asking each party to identify his or her own perspectives, interests and beliefs and to listen for those of their spouse. They remind clients, as they are about to say something sarcastic, caustic or damaging, to analyze if the comment will help them to meet their interests. Each of the lawyers will assist her/his client in developing a list of requirements and goals for the negotiations. After that, the process occurs in a series of four-way meetings made up of each of the parties to the divorce and both attorneys. Typically, the meetings are two hours each. This is where the substantive work is done (negotiations about property settlement, child support, child custody and visitation, etc.). The lawyers may meet with their clients separately to “debrief” them after a four-way meeting and to discuss concerns for the next four-way meeting.
Various experts may be brought in to facilitate the process. These include accountants, mental health professionals (who frequently act as communication coaches), child specialists and/or financial planners to guide them in making decisions and communicating with the other team members. Sometimes mediators are called in to assist the negotiations when there is an impasse. Finally, after all issues are resolved, the case is filed in court and the decree is delivered. This may sound as though the process is potentially large and cumbersome. Consider the alternative, however. CFL divorces are far less expensive than a prolonged court fight.
The movement is spreading.
By ROSEMARY J. STAUBER, PH.D.
Rosemary J. Stauber, Ph.D., is a clinical psychologist.