When two people who, having had a loving relationship and a bond through marriage, drift apart for whatever reason and one or the other or both decide to get a divorce, the legal system immediately sets them up as adversaries. During a divorce, trust in the other spouse usually breaks down first. Each spouse “fills in the blanks” about what the other spouse is doing or planning and each spouse begins thinking of ways to “retaliate” or “hurt” the other spouse, in response. Needless to say, people in this situation do not necessarily “fill in the blanks” in a very positive way about the other person or about the other person’s attorney.
The resulting actions and reactions, between the former couple in what is naturally an emotionally charged and paranoid event, fling them into a full blown freight train heading at high velocity into a solid brick wall. Who gets hurt in the long run? Those precious little beings who are half Wife/Mother and half Husband/Father – the couple’s children are caught in the crossfire with no voice in the matter.
What if there is a better way? There is a better way. A process founded by family law attorneys who saw the devastation to families after a “scorched earth – take no prisoners” approach to divorce. After litigating divorces year after year, the founders of the process realized THERE HAS TO BE A BETTER WAY!
So, Collaborative Practice; Collaborative Divorce; or Collaborative Law came into existence. Family law attorneys with like minds and with the assistance and the advice from mental health professionals dealing with their clients’ children and families came together to start a better way to get divorced. Twenty years ago the process was founding by attorney, Stu Webb. Another attorney, Pauline Tesler, and mental health professional, Peggy Thompson, started an organization ten years ago that is now international: The International Academy of Collaborative Professionals (“IACP”): www.collaborativepractice.com. This website and the Collaborative Practice Institute of Michigan (“CPIM”) www.collaborativepracticemi.org, founded in 2004, provide information and answers to questions regarding this process.
First of all, attorneys, mental health professionals and financial professionals take specialized training to learn how to assist couples through divorce with this process. The idea is a team approach in an effort to assist people with the emotional and financial issues of divorce with each party having the representation of a trained attorney, committed to the process and guiding the couple throughout. For attorneys, this is a paradigm shift from the gladiator mentality for which so many are famous or infamous.
After meticulous screening and comprehensive information provided to clients by each of their collaborative attorneys, a 4-way meeting is scheduled. At this meeting, the parties and attorneys thoroughly review and sign an enforceable contract to resolve all of the issues necessary for finalization of the divorce WITHOUT GOING TO COURT.
The contract states that if the process breaks down, the collaborative attorneys must withdraw from the matter and cannot represent their clients in court and the parties must seek new attorneys. This provision is the most important feature of the collaborative process, because it provides both the parties and attorneys with financial incentive to stick with the process and come to resolution. The mindset from the beginning of the process and throughout is NOT winner take all, instead it is a process of cooperation, dignity, respect and creative solutions. The contract also requires full disclosure of all information, a financial status quo, no removal of children, and agreement not to transfer or dissipate assets or incur additional unnecessary debt.
The two clients and two attorneys work in 4-way meetings, taking a team approach in a transparent fashion with the ultimate goal of creating win-win resolutions. The attorneys model effective communication, active listening skills, needs-based negotiations, reframing of issues and creative problem-solving techniques. The parties agree to deal in good-faith, with respect, integrity, and a determination to come to resolution as a group.
After an initial meeting, the group may decide that mental health professionals be involved to assist the parties as divorce coaches with the emotional aspects of divorce to further facilitate effective communication during meetings. A neutral child specialist (mental health professional) serving as a child advocate or assisting with parenting issues may also be needed.
The group will review whether one or the other or both parties need a financial coach; or a financial neutral may be added to assist with the division of assets, financial needs, tax implications, retirement plans, business valuations or financial education for one or both parties. These collateral professionals are regularly brought into litigated divorce matters as experts for one or both sides, but when used in the court oriented setting, they become the necessary weapons of the attorney for the purpose of destroying the other side’s view of facts or legal issues and this process is often coined, “The Battle of the Experts!”
In the collaborative process, the multidisciplinary team is just that – a team with the same goal, i.e., helping to further the “win-win” resolution of the restructured family during and AFTER THE DIVORCE.
Another benefit to this process is the self-determination of the parties. People who actively participate in their own settlements are more committed to adhering to the settlements and are more likely to seek a similar route to problem solving in the future. On the other hand, when a third party, such as a judge, referee or arbitrator makes a decision after a brief hearing on issues or when lawyers settle divorces on the courtroom steps, people often end up re-litigating their divorces far into the future. We’ve all heard it said: “He or she just wants his or her day in court!” Unfortunately, litigants to a divorce soon find out that a day in court is not at all what they imagined or anticipated because judges simply do not have enough time to discover everything about each party and the particularities of their family and usually end up ‘splitting the baby in half.’ The old statement: “Judges are successful when both parties are dissatisfied with the result,” is not really far from truth. In contrast, with the collaborative process, people roll up their sleeves and work toward problem solving, resulting in a sense of satisfaction, accomplishment and moving each person in the right direction for his or her future.
Henry S. Gornbein is trained in Collaborative Practice. He is also certified as a mediator and has advanced mediation training. He prides himself in offering our clients every possible option available to assist them through the difficulties of divorce and post-judgment of divorce issues. He believes in restructuring families, not destroying them.