What is collaborative divorce?
The collaborative process for divorce builds on mediation as an alternative to traditional adversarial divorce in that attorneys try to help clients amicably reach agreement, but it is notably different from mediation in that each party has an attorney and thus has legal representation. Also, the conversations to try to reach agreement are held with a specialist on the topic at hand in the primary areas of divorce: legal, financial, and children. Thus depending on the issue the parties may be in 4-way meetings between attorneys and parties, 3-way meetings with the parties and a financial specialist, or 3-way meetings between the parties and a child specialist. Coaches are also utilized in some cases and can be vital to helping develop and supporting the parties’ abilities to reach agreement. In the lingo of collaborative divorce, the Referral model is when the case starts with just attorneys and outside experts (typically financial or child specialists) are used as needed, often when an impasse arises. Many collaborative attorneys and professionals encourage clients to use the Full Team model in which experts are included on the team from the beginning of the process to proactively avoid impasses.
The most unique feature of the collaborative process is the signing of the collaborative pledge, in which divorcing spouses and their attorneys as well as all other professionals all agree the attorneys and professionals are disqualified from going to court. This disqualification removes the process from the adversarial court system, with the theory being that removing the threat of contentious litigation will take the fear, hostility, and negativity out of the negotiations and instead allow parties to utilize non-adversarial conflict resolution and interest-based negotiation to come to a fair settlement agreement.
Many traditional/adversarial attorneys will say, when asked if they do “collaborative divorce,” that they do “collaborative," but they may simply mean that they are willing to avoid adversarial interactions and try to work amicably; however, it is not truly collaborative divorce unless parties and attorneys sign the collaborative pledge, so a better question would be at ask an attorney if they sign the collaborative pledge barring themselves from representing you in litigation. Another good question to ask is what specific training the attorney has had in collaborative divorce, alternative dispute resolution, and interest-based negotiation since these skills are not taught in law schools and must be gained through specialized trainings. Likewise it is very important that the financial specialist, and mental health professionals acting as coaches and child specialists, have specific specialized training in collaborative divorce.
Collaborative divorce minimizes or eliminates the negative consequences of adversarial litigation in the family arena by:
• avoiding litigation and lawsuits
• providing legal representation to each individual
• providing specialists to address the multiple aspects of divorce, thus allowing parties to feel more certain about their agreement
• jointly retaining experts as needed (for example, financial specialists, child specialists, and coaches)
• coordinating problem solving
• minimizing conflict between separating/divorcing individuals
• protecting the co-parenting relationship
• assisting couples in making sound and thoughtful decisions about the future for themselves and their children
• addressing short-term and long-term financial concerns
• minimizing the expense of divorce
• protecting families from unnecessary resource depletion
Studies show that a collaborative settlement is reached faster than settlement in traditional divorce negotiation and greatly reduces the emotional trauma families experience in divorce, especially children. Studies also show it costs the parties less money to complete and reach settlement than traditional adversarial divorce, and costs much, much less money than litigation.
This article was written by Dr. Tina Lepage who serves on the Executive Committee of NCACDP. For more information on Tina see her bio under Members on this site, or visit her web site at: www.lepageassociates.com.