FAQ Collaborative Divorce
What is Collaborative Divorce?
Collaborative divorce is an alternate approach to marriage dissolution, developed in the 1980’s by Minnesota lawyer Stu Webb, which strives to empower spouses to resolve disputes respectfully without going to court. The approach was developed from the idea that lawyers using non-confrontational and more cooperative approaches could effectively reduce the competitive aspects of divorce and increase the ability of couples to make decisions that best fit their needs and the needs of their family. Since its beginnings, the process has been further developed to include members of the mental health and financial professions who act as additional supports for the couple such as child specialists, divorce coaches and financial advisors.
How is Collaborative Divorce Different from "traditional" divorce and mediation?
In a “traditional” divorce each partner retains their own attorney who is aligned with them and advocates for their position. Both lawyers defend the rights and interests of their clients with the law providing the structure of a fair agreement. The lawyers lead the negotiations making offers and counter offers until an agreement is reached. If an agreement is not reached the couple may seek mediation services or to have their dispute settled by a court of law, often retaining the same lawyer as their legal representative in both processes.
In Mediation the mediator acts as a neutral party that is trained in a non-confrontational, solution focused approach and guides the parties through the negotiation process. The mediator is not a legal professional and cannot give legal advice. Therefore each party retains their own lawyer who is either present at the negotiations or is available between mediation sessions. In mediation if a settlement is not reached the couple can seek litigation with their own attorney if agreeable to both.
In collaborative divorce, like the other two approaches, each partner retains their own lawyer, however the lawyers in this case have additional training and experience in using non-confrontational negotiation styles. The lawyers work cooperatively while providing consult to their clients. In this model the lawyers continue to be the legal experts, but the couple is seen as the experts in making decisions for their own future. In collaborative divorce other team members may be brought into the process depending upon the needs of the case. Divorce coaches, child specialists and financial advisors are examples of the adjunct support offered. In the team approach all members openly share all information, participate in team meetings with the clients and remain neutral to either party. The additional elements unique to collaborative divorce are; An emphasis on open communication and full disclosure with both partners, lawyers and other professionals involved, the focus on creating unique solutions that are based on the family’s needs rather than the courts and the voluntary commitment of all parties to not go to court to settle the dispute. Although the process is voluntary, the commitment to non-litigation is irrevocable. If either party wishes to move their dispute to litigation, the team dissolves and both parties will have to seek new legal representation.
How can working together be possible and can it be fair?
At first glance this process may seems unrealistic. Divorcing couples often come to the table with power struggles and communication difficulties or attempting to make decisions based upon the feelings that are common to divorce such as anger, grief, guilt and overwhelming anxiety- hardly the basis for making sound negotiations.
The key to its success is the support and guidance from the professionals and the wiliness of the partners to work together despite different perspectives. The uniqueness of collaborative divorce is that it makes implicit in its process the development of a future focus. The team supports each client in articulating their concerns, fears, hopes and needs in a way that is honest yet respectful, paving the way for more empathy and cooperativeness. Both partners work together to create a positive vision for each partner’s individual goals and a shared vision for their family future post-divorce.
The question of fairness is an important issue to divorcing couples. Traditionally the courts have set the definition of “fair”, however laws and the interpretation of these laws can vary widely. What collaborative divorce attempts to promote is the idea that the involved parties can, with support, create agreements that are durable and acceptable towards their own interests more reliably than a neutral party. The team of lawyers provide general legal consult, but also work to help couples come to their own solutions. However the accessibility of information and open communication among all the team members allows for there to be a consistent monitoring by the neutral parties to ensure basic legal statutes and the balance of power and decision making is maintained between the clients.
What are the benefits/risks of the Collaborative Divorce process?
In a traditional divorce each individual’s lawyer works diligently to represent and protect their client’s rights and interests. There may also be other professionals that are asked to testify regarding the interests of other parties such as children. In many ways this system works quite well as all parties have equal access to the legal system and a voice within that system. However if these individuals have an ongoing post-divorce relationship such as parenting, the settlement is not the end of the struggle. There may be lingering concerns regarding the fairness of the settlement and they may have little experience and skill in dealing directly with each other over day-to-day conflict.
In collaborative divorce, a great deal of work is done to ensure that all significant concerns and reservations are explored and addressed fully by the couple before an agreement is drafted. Ultimately the settlement must be mutually acceptable and agreed upon and it must be durable or lasting in that both partners trust their own and their partner’s ability to fulfill the agreement before it is signed and entered as a legal agreement with the courts. In collaborative divorce, this final settlement is not the end in itself, but also the means by which the clients work together to create a transformed family- developing independence, strengths, empathy and communication skills that they can continue to utilize long after the divorce is finalized. Client's ability to work cooperatively during the divorce, significantly increases the likelihood that they will be able to communicate effectively afterwards- which is beneficial for retaining the positive parts of their prior relationship and for meeting the ongoing needs of any children involved.
The risks to collaborative divorce are that if an agreement cannot be reached or if one or both parties wish to use litigation to settle their dispute, they will have to find new legal representation at their own time and expense. They cannot use their lawyers or other team members or any tentative agreements reached in the collaborative process. In addition, the process itself can also feel ambiguous at times since the responsibility for making decisions rest with the couple rather than being able to rely on lawyers or the court to structure the agreement. There can also be a cost issue that is influenced by the time it takes to reach the agreement coupled with the cost of the number of professionals involved on the team. These risks should be discussed openly before and during the process in order to ensure that the needs and resources of the clients are considered.
Is Collaborative Divorce for everyone?
Collaborative divorce is not for everyone but it may be an option for many couples seeking dissolution. Couples do not have to be in agreement about the divorce- they can be feeling strong emotions and be in different places in the emotional process. They do not have to be “friends” or “getting along” to be successful in reaching an agreement. However there must be a basic level of respect for the other, trust that each can be honest, and a desire to work together ethically to solve their disputes.
Cases where collaborative divorce may not appropriate is where there are significant power imbalances between the two partners, a lack of ability to be honest, respectful or ethical or where one or both are have a diminished/limited capacity to advocate for themselves and/or fulfill agreements made. Examples are couples with a history of abuse, significant addiction issues or mental illness, or a demonstrated unwillingness to behave ethically and respectfully in the divorce process.
How can I find out more about Collaborative Divorce?
If you are interested in exploring collaborative divorce to see if it is right for you or your family the following links may be helpful:
International Academy of Collaborative Professionals at collaborativepractice.com
King County Collaborative Law at kingcountycollab.org