Collaborative Law Makes Messy Divorce Thing of the Past

Agreeing to proceed with a divorce, they shared one wish -- the process would not be an ugly contentious one that would harm their 7-year-old daughter. "We did not want to be caught in a whirlpool of the court system," she said.

Carol and her husband both engaged collaborative attorneys, a new breed of lawyers trained to cooperate rather than fight.

Worlds apart from traditional family law, collaborative law brings opposing parties and their lawyers to the table with the goal of coming to an agreement and settlement terms without going to court.

In fact, in collaborative law, couples agree in advance to spend their time, effort and money on settling their issues, not on litigation. Attorneys and any other outside professionals brought into the process also agree in advance that they will not go to court. Unlike litigation, which can take up to two years, collaborative law divorces take about 6 months on average to hammer out agreements between couples.

"The idea of settlement is not new with attorneys, but joining the opposition, that's a revolutionary idea," said David Weinberg, a family law specialist for 35 years who founded the Collaborative Law Association, a nonprofit educational association to promote and teach collaborative law. "Lawyers pool together their experience and talent and use the same energy to fashion a win-win situation. That's very unusual in our law system."

A strategy known as Collaborative Divorce goes further, using not only collaborative lawyers but an entire team of mental health professionals, child psychologists and financial advisers to help guide a couple through the divorce process. "Everyone is roped together and it doesn't help for people to push or pull," said Peggy Thompson, a clinical family psychologist who co-wrote a book with her colleagues called "Divorce: A Problem to Be Solved, Not a Battle to Be Fought."

"In collaborative divorce, we have open communication between the partners and their lawyers. Meetings are always four-way. It's a negotiating team," said Thompson, whose Collaborative Divorce team has trained about 1,000 lawyers and has processed over 300 divorces using the Collaborative Divorce approach. "We teach clean, businesslike communication between the couple."

If the couple are not ready keep their emotions in check, they are referred to counseling until they are. "The dysfunction in the marriage carried into the divorce is often what makes the divorce process drag on and on," said Thompson. "Divorce is, in essence, a business transaction. To get anything done, you need to keep emotions out of it." Teaching couples to communicate effectively has had unexpected benefits, she said. "It's not our goal, but we've had a number of reconciliations."

Talia Katz, a partner in the Phoenix law firm of Gladding, Bankoff & Katz, just finished her Collaborative Divorce workshop training. "This is a whole other planet compared to what we usually do," said Katz, who has been a traditional family law attorney. "Traditional family law is not for me, or any human being for that matter. At the end of each case the attorney goes home, leaving behind scarred damaged people in pain. The traditional process has a take-no-prisoners approach, which is not appropriate for families."

The team approach is what is so vastly different from traditional law, said Katz. "In traditional family law, if you refer your client to counseling, it's very risky because that could be used against them in court," Katz said. "The big winners (in collaborative law divorce) are the kids. Because when this is done properly the parents establish a relationship that will enable them to co-parent."

"We are hired solely to get the (divorce) case settled on a civilized level," said Pauline Tesler, a collaborative lawyer with the law firm of Tesler, Sandmann, & Fisherman in San Francisco. "If we can't do that, we're fired. This has very profound effect on the lawyers." For example, in traditional law, if negotiations reach an impasse, the case usually goes to court to settle it. "In collaborative law, if we reach an impasse the lawyers are trained to be quiet and keep quiet. Suddenly everybody realizes that nobody wants to go to court, and it never fails, a solution emerges," she said. "There hasn't been anything like this in dispute resolution. And it works."

After all, what most divorcing couples want is a "good divorce," said Tesler, whose very first collaborative law divorce case in 1994 ended in a reconciliation. "There are more bad divorces than there need be. That's a result of the traditional divorce process. Because once you've signed court papers, those first papers are the death bell. It's full of horrible stuff. And its very hard to go back once that happens."

Carol, who started the collaborative law divorce process in December 1999 and is now finalizing her divorce 7 months later, said that if she had gone through a traditional divorce, things between her and her ex-husband would have been much different. "I think we would have built on the bitterness we felt toward each other and used it to attack one another," she said. "It would have been like a hornet's nest."

But Carol says she likes to call her divorce "the most amicable divorce in history." Their financial agreement protects her ex-husband, who was between jobs during the divorce process, should he make more money, and protects her in case he should lose his job or make less money. "In a traditional divorce, untangling those details would have landed us in court over and over again."

Aside from the financial agreements, Carol said that collaborative law divorce protected her daughter's relationship with her father by helping the couple learn to put aside their emotional differences to reach nonhostile agreements that both could live with. These skills are essential for co-parenting, Carol said. "We have to communicate better than when we were married," she said.

"We both feel happy and we're willing to be friends," she said. "When it was all over, there was completeness, even sweetness to it all. Who ever says that about divorce?"

(c) COPYRIGHT 2000 THE AMERICAN NEWS SERVICE

This article is copyrighted by The American News Service. Permission is granted to republish, reproduce or transmit American News Service articles under two conditions: (1) you are a media subscriber to The American News Service and (2) the material must be clearly identified by the words "The American News Service." ANS appreciates receiving tear sheets, tapes or videotapes of any article or program produced as a result of this material. Please send these to: The American News Service, 289 Fox Farm Road, Brattleboro, Vt. 05301. For further information, please call 1-800-654-NEWS or e-mail info@americannews.com.

Comments

Maya  ,   Toronto, Canada	03/15/03
Mediation acts to reproduce patriarchy
As a law student studying ADR processes, collaborative law does not and cannot involve the role of a mediator. While collaborative lawyering is very similar in process to mediation, in mediation the very real threat of an imbalance of power between the parties (be it unequal bargaining power, economic dependence of women) means that the ultimate decision in mediation, however innovative it may be, will still leave the party in a subordinated position. Collaborative law allows the parties to be fully represented by counsel, to be informed of their rights, and to obtain the necessary legal information and advice needed to make an informed and satisfactory decision. The mediator in a mediation session is bound by neutrality, and cannot level the playing field if faced with a weaker party to a dispute, be it real or perceived power. The weak remains weak, while the stronger party will likely ovepower the discussion and encourage the weaker party to concede. Collaborative law stirs around this problem and allows both parties to fully participate in the process on an equal footing. Add New Comment

Marty  Gofberg,JD,   New York Ne	ergllc@yahoo.com      02/13/01
The collaborative process is wonderful by definition. However, given the real world, the practical aspect of having one parties attorney remove themselve per the rules allowing for same, gives one pause as to why a mediator is not an integral part of the process from inception, in the capacity as both a facilitator and as a mediator to safeguard the neutrality of the communication process in terms of balance. It would seem that collaborative law is the best place to insert a mediator to ensure fair/balanced collaboration between the parties, and would be most welcome by the parties counsel in terms of creating a neutral flow as to all of the issues on the table, and wonderful for the mediator who has jointly committed scribes to be able to more efficiently craft the agreements of the parties to sign. It would seem that this area is a natural for mediators and other neutral evaluation professionals (CPA's and therapists, etc.) to be a part of. Add New Comment

Janece Wright,   Costa Mesa CA	CPAMeD8R@aol.com      08/12/00
Use of Mediators in Collaborative Law
I would agree that in most cases, collaborative law would be in place of either mediation or traditional representation focused on litigation. However, since other professionals are brought in, ie CPA's, therapists, and the like, it may be more beneficial to the process, if the professionals that are brought in have been trained in collaboration. I am a CPA/Mediator, hence I bring a background in business, tax, finance, and forensic accounting to the table, along with both training and experience in collaborating with both sides to resolve a dispute. I see this as a bonus to both the attorneys and their clients over CPA's who aren't specifically trained in collaboration. Furthermore, as a mediator, I often refer clients to attorneys. I would love to have collaborative attorneys on my list of recommended attorneys for the same reason that they have collaborative training. Also, while I applaud collaborative law and the attorneys who are practicing it, I believe that it is still more costly and lengthy than mediation. As such I believe that mediation is still better in many cases. However, I also believe that Collaborative Law may fill a real gap between mediation and traditional representation, and may be better able to serve clients who are closer to needing to litigate some issues. Add New Comment

Mary Marshall,   Martinsville NJ	08/02/00
Collaborative Law
After practicing divorce law for 15 years, I am now a full-time divorce mediator. I think that collaborative divorce sounds wonderful; I wish it had been around when I was practicing law. However, I have a question: where does divorce mediation fit in? It seems to me that it doesn't. If couples use the collaborative law approach, a mediator would seem to be superfluous. What do others think about this? Add New Comment

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.