The Collaborative Divorce Process

What Collaborative Divorce is and how the process works

In the collaborative divorce process, each party has its own lawyer who has extensive training in the process. The couple signs a contract stating that they will try to resolve the dissolution of their marriage and all related issues in an open, honest and respectful way. They agree to do this through a series of four-way meetings where they and their lawyers do not engage in strategic negotiation, but instead participate in a full discussion of possible options for each issue that needs resolution.  The lawyers and their clients agree that if they are unable to resolve all the issues, leaving litigation the only option, the lawyers will be released and their clients will start over with lawyers who will represent them in litigation.

Prior to the first joint meeting, each attorney meets with his or her client to learn as much as possible about the client’s goals. The lawyers encourage their clients to approach the process with flexibility, creativity, and a sincere wish to create compromises that will  work for the entire family rather than just one party. The attorneys then meet and discuss any possible pitfalls or emotional minefields they might face in the process.

Transparency is Key

Once the four-way meetings have started, most of the communication among the parties and their lawyers occurs in those meetings. This doesn’t mean that the clients can’t meet individually with their lawyers, but if they meet to discuss substantive matters (as opposed to emotional ones), they need to share that discussion with the group as a whole. Transparency is one of the cornerstones of the process. Not to disclose a substantive discussion may encourage the clients to engage in strategic negotiation as opposed to collaborative cooperation.

Coaching and Neutral Financial Advice

The collaborative model also envisions, bringing in a collaborative coach and a neutral financial advisor if it appears that the process would benefit from doing so. The coach is a mental health professional who has been trained in the collaborative process. He or she does not provide therapy or marital counseling, but  encourages the couple during the process. A coach can be invaluable in cases where the legal issues are fairly straightforward but the emotional ones are challenging. Often it is the coach who spends the most time with the couple, which not only saves on attorneys’ fees, but can also help the couple face the prospect of divorce with greater understanding.

The financial advisor’s role is much like that of the coach. His or her job is to sort through the couple’s finances so that financial information is made is made available in a way that both the lawyers and the clients can understand. The financial advisor also helps project the future needs of the parties and how the financial resources of the family can be allocated to meet the future needs of the couple and their children.

At the end of a series of meetings when all the issues have been worked out, one of the attorneys will draft a separation and property settlement agreement reflecting what the couple has agreed. The agreement is the creation of the couple with the help of their lawyers. The divorcing parties will have taken the opportunity to control the future of their family as opposed to putting it into the hands of a stranger who may or may not understand their family dynamics. They will have, hopefully, laid the foundation for healthier future relationships that benefit the whole family, and they will have learned to communicate in a productive, respectful way.

Collaborative Divorce Process vs. Mediation

Collaborative practice is sometimes described as mediation on steroids. It is really much more than that.  A mediator, who may or may not be a lawyer, helps persons, including divorcing couples to come up with their own solutions to legal problems. A mediator should not advise or give legal advice. In contrast, the collaborative attorney must give legal advice and must zealously represent his or her client throughout the collaborative divorce process. The collaborative attorney may tell a client – in a group meeting – what the possible outcome of litigating particular issues may be. But this advice is not done strategically, but to inform both parties how divorce laws tend to be applied and interpreted so that they can make informed decisions. It is unusual in the collaborative process for attorneys to differ in their predictions of how courts will resolve divorce and custody issues.

The collaborative process focuses on a couple’s future, not their past. It is not concerned with what brought the couple to the point of separation and divorce, but rather with charting a course for the couple and their family’s future.