The following is an article by Pauline H. Tesler about Collaborative Divorce, originally published in the American Bar Association Young Lawyers' Division newsletter.
Ms. Tesler is an author, a trainer, a specialist in family law certified by the California State Bar Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, and a recipient of the first ABA Dispute Resolution Section’s Lawyer as Problem Solver Award.
Psychologist Abraham Maslow said, “If your only tool is a hammer, all problems tend to resemble nails” - a maxim that goes far to explain why the conventional tools and techniques we lawyers have traditionally had available to us for handling divorces so rarely produce satisfied clients. Many family lawyers initially thought that mediation, which took root in the family law field during the eighties, might bridge the gap between the obvious needs of divorcing families and the poorly-matched tools and resources available to them in court-based legal conflict resolution. That hope did not bear fruit. Mediation works well for some, but not all or even most divorcing couples. As mediator and mediation theorist Bernard Mayer has observed, the strictly neutral role of a mediator does not always serve clients well, because alongside a desire to reach a contained settlement, clients at the same time have a need for support and advocacy that a neutral mediator cannot provide.
In mediation, one neutral conducts the conflict resolution process, with the spouses negotiating directly, face to face. The mediator, who must maintain neutrality, cannot counsel individual parties or do much to level an unequal bargaining table or to address obstructive or non-constructive participation by a party. Individual legal counsel may or may not be present during the mediation, but in either case, the lawyers do not participate directly in negotiations. Instead, they advise clients privately about the law, the issues, and the proposed resolutions. This creates an inherently unstable structure in which the lawyers are not fully aligned with the goal of settlement and, indeed, may advise clients to terminate the mediation process and litigate instead.
Collaborative Divorce Introduced
Collaborative divorce (also called collaborative law, collaborative family law, and collaborative practice) has become highly visible in the field of family law in the United States and Canada since its introduction in the early nineties, and now is spreading rapidly in Europe, in Australia, and in New Zealand. The remarkable speed of its acceptance among family lawyers can be attributed to the fact that it works toward the same goals that mediation seeks: contained, civilized, constructive, self-determined, interest-based conflict resolution, but without the inherent weaknesses that render mediation difficult for many divorcing couples.
In contrast to mediation, the negotiations in collaborative divorce take place in direct meetings conducted with clients present and at the forefront, and with collaborative counsel by their sides. The negotiations are guided and managed by the same two lawyers who provide the legal counsel, advocacy, and support that divorcing clients so often need. These lawyers are allies and advocates, not neutrals. Significantly, both lawyers and both clients sign a binding contract that precludes those two collaborative lawyers from ever threatening litigation or taking the matter to court. If the collaborative process terminates, both collaborative lawyers must bow out and hand the matter over to new litigation counsel.
The Nuts and Bolts
The nuts and bolts of collaborative law are as follows:
- Each party is represented by a specially trained collaborative lawyer.
- These two collaborative lawyers are bound by the same professional ethical mandates that all lawyers must honor.
- The lawyers are retained pursuant to a “limited purpose retention.” The sole purpose for which the lawyers are hired is to help their clients reach a reasonable, acceptable settlement of all issues, without litigating or threatening to litigate.
- The clients retain their right to terminate the collaborative divorce process and to take their issues to court, but the collaborative lawyers and other collaborative professionals cannot go with them.
- Information is shared fully and freely, on request. Hence, suspicion and paranoia drop dramatically from what is normally experienced in litigation.
- All negotiations take place directly, face to face, in “fourway” settlement meetings. The lawyers do not bargain as agents in the absence of their clients. Interest-based negotiations are the preferred mode, not positional bargaining.
- In addition to a collaborative lawyer, each party is encouraged to have a divorce coach to help the party constructively articulate emotions and key issues.
- Instead of being kept in the dark and out of the loop, the clients’ children have a voice as well. When couples choose a fully-staffed interdisciplinary collaborative divorce team, a neutral child development specialist is included. This professional listens to the children’s chief concerns and helps the family to address them in a separate meeting with the coaches.
- Finally, a neutral financial consultant helps parties and lawyers gather the financial data, analyzes the family resources, and helps the couple to understand the size of the pie, offering creative solutions for consideration that can be far beyond a court’s power to order.2Plus there are no hidden finances or surprises and as a result many couples under stand their money situation better than before. Instead of playing the litigation game of “hide the ball,” this consultant ensures that all financial questions are answered and all necessary information is brought to the table so that sound solutions can be devised. With the financial consultant’s help, many couples do not just reach divorce agreements—they also understand their money situation far better than ever before.
- These professional helpers all work together to help a couple focus not just on reaching a “quick fix” settlement agreement, but on laying a foundation for optimum communications and problem solving during the period of rapid changes a couple can expect after the legal divorce judgment has been entered. They remain available as needed to help couples adjust their parenting plans in light of actual experience during the months and even years following entry of judgment.
Why Collaborative Divorce Training is Essential and How to Get It
If you are interested in learning more about collaborative divorce, the starting point is to obtain high-quality collaborative training. Collaborative practice requires special skills that lawyers do not learn in law school, in court, or in mediation trainings, and you cannot do it competently without taking the time to learn this new craft. Here are some pointers to keep in mind.
- There is a wealth of information available at www.collaborativepractice.com, the website of the International Academy of Collaborative Professionals (IACP). There you can find local practitioners and practice groups in your region, announcements of training programs and conferences, collaborative law publications and other professional member resources, and materials about collaborative divorce for distribution to clients.
- IACP has promulgated standards for practitioners and trainers, as well as ethical standards, that you should become familiar with. A basic training that meets IACP standards consists of two days, or twelve hours, of instruction, role-play, and discussion.
- There are now many books on collaborative divorce available for professionals, including Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, written by this author.
- The first book for general readers, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On with Your Life, is a good basic orientation to collaborative law and to interdisciplinary team collaboration.
SOURCE: American Bar Association