COLLABORATIVE DIVORCE CREATES “WIN-WIN” SOLUTIONS.
Over the last 10 years many experienced family law practitioners have come to believe that our current adversarial system is simply inadequate to address – let alone resolve – the increasingly complex dynamics of family conflict. Even in bitter divorces husbands and wives usually really want to do the right thing. They just disagree about what the “right thing” is. 1 But our judicial system, by its very nature, is set up to create two types of participants: Winners and Losers. That type of system can and does serve the public interest well in matters of criminal misconduct, tortious acts, and contractual disagreements. However, when dealing with the disintegration of a family unit, both parties have already lost before they ever retain their divorce attorneys. Two people who once loved each other enough to get married,[2] have failed in their marriage. Their children are in turmoil, and their finances are strained, if not in complete ruin. On top of such stresses, the parties are then burdened with hiring their own professional gladiators to suit up in order to annihilate the other side. And whether they actually try the case or settle on the courthouse steps, no one has been spared the emotional or financial devastation of the war.
What is Collaborative Law?
The Concept
Collaborative Law is the 21st Century's cutting-edge alternative method of resolving disputes without the use of a judge, jury or even a courtroom. This unique approach allows the parties and their respective attorneys to meet privately and work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner.
The Collaborative Law model transcends traditional notions of mediation and actually represents a complete paradigm shift away from litigation. The threat of the courtroom is effectively eliminated at the very beginning, for the parties and their attorney sign a written contract, called a “Participation Agreement,” which serves both as a rule book governing the conduct of the participants and also as a commitment to keep the case out of the courtroom. If either party later reneges on the agreement, the “liquidated damages” clause of the agreement requires that both attorneys withdraw from the case. While this might seem an unnecessary precaution, it is actually the lynchpin that keeps the case moving forward collaboratively even when the negotiations become difficult.
The Mechanics
The signing of the Participation Agreement and the contractually agreed-upon boundaries that are put in place as part of it serve to promote a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas that are adhered to strictly, the parties work their way through the gauntlet of substantive issues that must be addressed and resolved as part of any divorce. During this process, a full range of jointly-engaged neutral professionals, including communication coaches, financial consultants, estate planning professionals and others can be called upon if needed to provide information and options for specific situations. The parties themselves, with the counsel of their respective attorneys, determine whether and when to involve such neutrals. Once a final agreement is negotiated, the lawyers for each side jointly draft the agreement and file it with the appropriate court for approval.
The Professional Team
Attorneys: Collaborative Law attorneys take on a particularly interesting role in this process. They shed their gladiator’s armor and take on the role of “settlement-only specialists,” a phrase coined by the model’s creator, Stuart Webb. As he puts it, the collaborative lawyers are attorneys who work with the couples outside the court system. They turn the case over to trial lawyers if and only if the settlement process fails.[3]
While the attorney-client relationship remains wholly intact and the attorney still advocates on behalf of the client, the positional, adversarial elements are abandoned and replaced with a cooperative, interest-based approached to negotiations. The metaphor I typically use when describing the model to my clients is this: Traditional litigation is like a game of poker. Each party is dealt a hand of cards and the object is to beat the other player by rook or by crook. But in a collaborative case, everyone lays his or her cards face-up on the table. Then we move the cards around to make the best possible combination for both players with the cards that are available.
Neutrals: One of the many unique aspects of the collaborative model is that experts are jointly engaged by the parties to provide specific professional services during the case instead of each party hiring her or his own expert. While there are numerous types of experts, including child specialists, tax consultants, and business appraisers, the two experts most commonly employed for a case are the Mental Health Professional and the Financial Consultant.
The Mental Health Professional (also known as the “MHP” or “Communications Coach”) provides a broad range of services to the parties and the attorneys, including all of the following: Helping the parties to frame their points constructively; monitoring and managing stress levels both during joint sessions and during offline meetings; and guiding the often difficult discussion regarding the parenting plan for the children. As a fringe benefit, the parties frequently acquire more productive communication skills modeled by the MHP and other professionals throughout the case, which can serve them long after the divorce is over. Finally, many collaborative professionals have also found that the MHP makes an effective discussion leader during the joint sessions, since experience has shown that parties tend to feel more comfortable having a neutral “run the show.”
The Financial Consultant (also known as the “Financial Neutral”) is tasked with gathering, organizing, and presenting the parties’ financial information to the team in a way that enables the parties and the attorneys to understand it and act on it.[4] As Pauline Tesler wrote in her book, Collaborative Divorce, the Financial Neutral “educates you about financial matters and planning; identifies issues that will need to be addressed by other team members; and helps develop and evaluate settlement scenarios in collaboration with [the] lawyers.”[5]
While the neutrals are often indispensable to a successful resolution of a collaborative case, they are not mandatory. The parties, working in light of the recommendations of their respective attorneys, ultimately determine who will be needed and who will not. And, just as the lawyers must withdraw in the event the process is unsuccessful, so too must the neutrals withdraw. Similarly, they cannot serve the parties in any other capacity in the future.
Why It Works
There are two fundamental reasons why Collaborative Law works as an alternative to litigation: Collaborative Cases (a) Get to the “Why”; and they are a (b) Better Value.
Getting to the “Why”
Attorneys are trained advocates and negotiators. We like to debate and we like to win. Whether it is in the courtroom or at a conference room table, we know what our client wants and our job is to help her or him get it: “My Client wants the kids, the house, and the 401(k). Your client can have the boat, the note, and the girlfriend.”
That kind of proclamation is very positional. Positional negotiation is the standard model in litigated cases. In order for one party to get what she or he wants, the other side has to lose it. It is often guided by feelings of betrayal or anger based upon the past conduct of the other party.
By contrast, collaborative professionals shift the focus, the discussion, and the negotiation to the future. Great attention is paid to discovering the “why” behind the positions: Why do you want the kids? The house? The 401(k)? In this example, as the professionals and the parties continue to dig beneath the positions, perhaps they collectively discover that the “why” has more to do with protecting the children’s school schedule than actual physical possession. The house is the only home the children have ever known. The 401(k) represents long-term financial security.
Once the team uncovers the parties’ true interests (aka the “why”) then everyone is free to unleash their imaginations to develop and evaluate options you would never see in a courtroom. Ultimately, a solution can be achieved that more effectively meets the interests of both parties.
Better Value
It is frequently stated that about 95% of the divorce cases that get filed state-wide ultimately resolve without a contested final trial. Yet since attorneys cannot predict which 5% will go to trial, the attorneys must dutifully spend some portion of their time preparing all of their cases for a trial that will probably never happen. That means that 95% of the divorcing universe is wasting some portion of their money, since they are being denied a trial for which they have already paid.
Conversely, whether the parties are working on a parenting plan, a business valuation, or the division of unsecured debt, 100% of every dollar the clients spend in a collaborative case is dedicated to the goal of settlement. The parties quickly see that they are getting a better bang for the buck in the collaborative model than in traditional litigation.
What Clients Are Saying About it
The best evidence for the success of the collaborative model comes from those who have actually gone through it. Stuart Webb wrote that “[t]he majority of the couples who go through the Collaborative method come through the process satisfied with the results.”[6] Why? The answer is so simple it can be difficult to accept:
It gives the couple greater control over the outcome of their divorce; resolution is generally less expensive and quicker than going to court; it benefits the children by keeping them out of the controversy; and it helps the couple to maintain a sense of integrity and respect, which is often a priority when children are involved.[7]
The results are coming in across the nation and even beyond our shores. People faced with a divorce are choosing Collaborative Law increasing numbers and most have very positive things to say about after-the-fact.[8] Perhaps the best evidence for the success of the model, however, is the fact that there is rarely a need to file a subsequent enforcement action regarding the divorce decree since parties are usually more apt to follow rules that they themselves have created.[9]
Of course, Collaborative Law is not a magic potion. It is not going to be a fit for everyone or every case. The model is probably not well-suited for cases involving substance abuse, domestic violence or other abuse, a history of intimidation or manipulation, or a history of mental illness. Some have also suggested that Collaborative Law divorces are not adequate to deal with a party who is willing to lie or conceal matters of substance. Of course, as Paula Tesler notes, litigation doesn’t make a liar honest, cure an addict, or make an immature spouse grow up. [10] Perhaps the real question in such cases then should be, “Do you want an adversarial divorce that tends to bring out the worst in most people, or a collaborative one, which may or may not be able to bring out the best in you and your spouse (but which tries to do so in ways that have worked for others)?”[11] Perhaps the answer to that question is as straight-forward as Collin County District Judge, Mark Rusch, once stated: “Those who want to fight and punish someone don’t go the collaborative law route-- they go to court.”[12]
COLLABORATIVE LAW RESOURCES
For more information about Collaborative Law, please take a look at the following resources and do not hesitate to contact me if I can be of any assistance to you.
www.northtexascollaborativelaw.com
www.dallascollaborativelaw.com
Brumley, Janet P., Divorce Without Disaster: Collaborative Law in Texas 32 (PSG Books 2004).
Tesler, Pauline H. and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, 47, (HarperCollins Publishers, 2006).
Webb, Stuart G. and Ronald D. Ousky, The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids, Without Going to Court , xv (Hudson Street Press ed., Plume Books 2006).
APPENDIX “A”
WHAT CLIENTS SAY ABOUT THE COLLABORATIVE LAW PROCESS
Choosing a Divorce Process:
For my divorce, my lawyer suggested that we work through the collaborative law model, and I have to say that it was the best decision that we made because it forced us to talk face to face and settle the issues rather than handle them back and forth through lawyers. – Orthopedic Surgeon
Divorce is a painful event, but if there was a way to lessen the pain, collaborative divorce is the way to go. My wife and I had decided to end our 10-year marriage. We wanted to do it as amicably, fairly and easily as possible. Traditional divorce creates barriers between the parties and advocates antagonistic behavior. In the end of a traditional divorce, a judge decides based on the evidence presented. Collaborative divorce lessens the adversity and puts the power to finish the relationship back in your hands. The process is legal and logical. Lawyers help you work out any legal issues, but all of the separation of property is decided by you and your ex-spouse. It truly is a revolutionary way to approach what is arguably the worst event besides death. – Director of System Engineering at Large IT Firm
I believe that every divorcing couple should have to try the collaborative process before resorting to traditional adversarial divorce. I believe that there should be a mandatory “cool down” period of 60-90 days, during which the divorcing couple should have to attend – together – a class that explains in detail the effect of divorce on their children (if they have any), and emphasizes the steps parents can take to minimize the impact on whatever age children they have. They should then go into collaborative divorce discussions, and turn to adversarial divorce only as a last resort. The process allowed my ex and I to each define our most important goals for during the divorce and beyond, and kept us focused on working towards a solution that met those specific goals. It kept us from getting off into unproductive tangents that were outside of our stated goals. – Retired Research and Marketing Executive
Given the fact that divorce itself is less than ideal or noble, it was heartening that in the midst of the shock and sadness, that there was at least a way to live up to an ideal in the way we handled the proceedings. – Christian Minister
Overall, I was very happy with this process. I feel fortunate to have had [my lawyer] represent me and I also feel very fortunate that [my spouse] chose to approach our divorce via the CL process. – Director of Regional Operations for Major Corporation
We did not want to get into a standard her-side vs. my-side argument. We did not want to be unusually cruel or draw any more pain and suffering to the situation than it already had. – Ken Hitchcock, VP for Apartment Development & Construction Co., quoted in “One Last Time,” The Dallas Morning News, September 2, 2002
We truly wanted to have some closure on this, and as little damage as possible. We needed to get our children moving forward and not get caught up with what their father and I were going through.…Using collaborative law was less stressful because it didn’t take place in a hostile setting. It was more open. There wasn’t a third party making decisions about your future. – Abbe Hitchcock, Account Executive with a Community Newspaper, former spouse of Ken Hitchcock quoted above in the same article
Benefits Offered by the Professionals Involved on the Team:
Having the entire team present or available was tremendously comforting – Everyone helped keep the process calm and focused, especially when dealing with my strong-willed, impatient ex-spouse. I also appreciated how much I learned from the generous explanations of legal and financial matters. I think it is imperative to have both the psychologist and financial advisors present at most meetings – It helps keep potentially explosive/sensitive issues under control, which in turn allows each spouse to more easily speak their mind. – Self-Employed in a Creative Field
The working relationship between the two attorneys and the mental health professional were essential to getting the matter resolved without a hideously expensive and emotionally damaging legal battle. The team worked together to keep our focus on our main goal of stability for our children. The process allowed us to begin to create a workable relationship as co-parents. As a result, the parenting arrangement was very creative and appropriate for our particular situation. – Training Director for a Major Corporation
[What I liked best was] that my attorney helped me remain focused on my primary goal ([concerning]…my children), while aiding me in (as much as I was willing to accept at a time of significant anger) remaining decent and positive toward my ex-spouse. [My collaborative lawyer] consistently talked about and helped me remain focused on what was best for all involved with the divorce process (myself, my ex-spouse, and the children).…Now 8 months after being divorced, my ex-wife and I are working very well together. I think that would not have been possible presently if [my collaborative lawyer] would not have helped lay the groundwork for a healthy after-divorce relationship between my ex-wife and me. – Psychiatrist
I was concerned that all of the 4-ways would cost many hours of lawyers fees without producing a large number of resolved issues. After the first meeting, I was still concerned about the issue of cost of all that time spent with 2 lawyers while working out everything necessary. After the second meeting, I was no longer concerned. Our lawyers made sure that each meeting produced significant results and significant movement on issues important to both me and my ex-spouse. I was also pleased that we used a collaborative divorce financial planner, who cost less per hour and who knew how to help us evaluate our assets and creatively pursue division of assets (as well as current and projected monthly expenses for both spouses) to meet our needs and goals.… In other words, I was very concerned that the collaborative law process would be quite cumbersome and costly, but instead I benefited from the knowledge of a “village” of specialists in and around collaborative law, and the entire process cost far less than a contested divorce would have cost. My negative worries about the efficiency and effectiveness of the process were unfounded.
– Our boys benefited by seeing us negotiate a custom solution that met the needs of ALL of our family members. … We allowed our children (because it was age-appropriate to do so) to have input on issues that concerned them. This was comforting to them. I believe that we set a good example for them by being parents who worked together to cause them the least amount of emotional impact as possible during and after our divorce. They have both thanked me for how we handled the divorce, and for us preserving our friendship through the process. – Retired Research and Marketing Executive
Experience of the Collaborative Process:
[The collaborative process] allows couples to focus on real issues divorced from emotional aspects of separation. I was allowed my voice, my opinions were heard. – Attorney
[What I liked best was] I consider myself blessed to have been "matched" with [a lawyer] who understands the spiritual and emotional aspects of the process as well as the legal ones. 1) Keeping the costs down 2) Keeping the process from becoming hatefully adversarial 3) My pacing was respected. – Educator and Small Business Owner
The ability to speak, discuss my wishes and desires and have the ramifications explained simply to both sides while together. – Small Business Owner whose pre-marital agreement was negotiated collaboratively
It wasn’t an easy thing, because there are a lot of raw feelings involved, but I think that having the four parties – the two of us and our lawyers – sitting down together in a process that fosters communication, was very helpful. – Andy Chaffin, Certified Public Accountant quoted in Divorce Without Disaster, by Janet P. Brumley
We came out it much better than we would have if somebody told us what we were going to do. Civility was the key. Because we had an agenda and a goal for each meeting, we were both able to be civil. It forced a lot of interaction between us because we had to make decisions on our own. We made every decision based on mutual agreement, and nobody left angry. I’ve been told by people who have heard about this process it’s unbelievable that we were able to handle it like that. – Ken Hitchcock quoted in Divorce Without Disaster, by Janet P. Brumley
You often hear about people using negative tactics during a divorce, but in my opinion, that can have a lifelong negative impact on the family and is simply unnecessary. Behaving that way would not only have reflected poorly on me, but it also would have hurt my children. I saw firsthand how hurtful a traditional, adversarial divorce was for the children of a good friend of mine, and I just wanted a process that was going to take care of me and my children, in the least hostile manner. Divorce is difficult for anybody, but this process was much smoother and left us feeling we had more control of our destination. I can be very painful, but it’s much better when you’re sitting down together with both of your attorneys and working this out together rather than in a courtroom where somebody else is going to tell you how you’re going to live your life and when you’re going to see your children. – Abbe Hitchcock, former spouse of Ken Hitchcock quoted above
We both wanted out of the marriage, but we didn’t want our children to “pay” for our mistakes. … The “process” allowed my ex and I to remain focused on this goal, rather than being focused on “getting” the other person. … Once we started working together to craft a solution we both thought was fair, we had incentive to work together – giving and taking – to reach a truly fair outcome. Through the collaborative divorce process we learned many creative ways to divide and preserve assets that we never would have thought possible. For instance, keeping the only home that the boys had ever known was extremely important to me and my children, but less important to my ex. Neither of us would have guessed that I could “buy” him out of his share of the equity in the house by giving him other assets that appeared on the balance sheet – achieving both of our goals (mine to keep the house, his to get rid of it). …Through our realtor and mortgage expert we learned how we could refinance our current house to a lower interest rate, and still allow my ex to purchase another house. I sincerely believe that we would not have known about or explored ANY of these options (and many more) unless we had used the collaborative divorce process….I was burdened by both personal health issues and family health issues during our divorce. The collaborative process allowed us to craft our solution on our own timeline – around my chaotic and unpredictable schedule. This took a horrible burden off of my shoulders at a time that I *really* needed that flexibility and understanding from the divorce process. … Neither of us felt that anyone was out to “get” us. I never felt that my ex’s lawyer was looking for ways to exploit me: she focused on both of our stated goals, as did my lawyer. “Everyone” was looking for a win-win outcome for every topic we had to address. I can’t emphasize enough how much this meant to me during what was a terribly difficult transition in my life!
– Before we worried about division of assets, we did a “current” budget together and a projected future budget for our separate lives. When we finally turned our focus to division of assets, we had a much better picture of each other’s future need. We then had the flexibility to move all or part of each asset into one of our columns based on who would need access to what types of assets in the near and far term. Since we have substantial educational expenses and I would be unable to work for a few years, we were able to make intelligent decisions about how to divide each of the assets. We were also free to decide who got what percentage of the total assets. The collaborative divorce process allowed us to craft a unique solution for our situation, instead of forcing us to “live with” an arbitrary decision of assets or a very non-optimal division of assets.
– Since our children were older, the standard custody agreement did not fit the needs of our boys. With collaborative divorce we were able to write our own child custody agreement, and back it up with a more “standard” agreement that applied *only* if we were unable to agree. Our younger son’s interests were put ahead of our individual interests, while maintaining an agreement that both parents are important in his life. We weren’t forced to live with standard rules that would have been very uncomfortable for our son and awkward for us.
– The common theme in all of my points is that we were able to create a custom solution for our specific family’s needs. We were partners in creating a solution, not individuals forced to live with a statutory “cookie cutter” plan for divorce where everyone seems to lose. Adversarial divorce creates “lose-lose” situations. Collaborative divorce creates “win-win” solutions. – Retired Research & Marketing Executive
Appendix reproduced by permission from the Collaborative Law Institute of Texas
[1] Janet P. Brumley, Divorce Without Disaster: Collaborative Law in Texas 32 (PSG Books 2004).
[2]Id. at 37.
[3] Stuart G. Webb and Ronald D. Ousky, The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids, Without Going to Court , xv (Hudson Street Press ed., Plume Books 2006).
[4] Pauline H. Tesler and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, 47, (HarperCollins Publishers, 2006).
[5] Id.
[6] Stuart G. Webb, The Collaborative Way to Divorce xiv (2006).
[7] Id. at xiv.
[8] For a listing of several representative quotations from various participants over the last few years, please see the attached Appendix “A,” provided courtesy of the Collaborative Law Institute of Texas.
[9] Id. at 25.
[10] Pauline Tesler, Collaborative Divorce 35.
[11] Id. at 36.
[12]Janet P. Brumley, Divorce Without Disaster 48 (2004).
