What Is Collaborative Practice?
Collaborative Practice begins when both parties hire lawyers who have been specifically trained in Collaborative Practice (for a list of Collaborative Practitioners, see www.CollaborativePracticeMI.org). An agreement is signed by both husband and wife, and by both their lawyers, committing all to settling issues in a non-adversarial manner, without going to court.
Often people initially desire a divorce with dignity and respect and wish to avoid a contentious battle. Yet entering the legal system rarely supports remaining true to that commitment. Human nature enters the picture as well, and hurt or anger can spiral out of control, despite the best intentions. Collaborative Practice seeks to build in support systems so that you can honor that commitment while navigating the difficult waters of divorce.
Collaborative Divorce Discussed on the Today Show
WHY CONSIDER
Collaborative Practice?
Traditionally, when a decision to divorce is made, both spouses retain a lawyer who advocates the best outcome for his or her client and prepares for trial. The problem is, only 2% of cases go to trial. Collaborative Practice recognizes there’s a 98% chance that a case will settle and gets down to the business of negotiating that settlement rather than preparing for a likely non-event, i.e., a trial.
In addition, Collaborative Practice is solution-oriented, in contrast to the adversarial nature of the traditional divorce process. Instead of focusing on getting the largest financial reward no matter what the human or financial cost, the parties and their counsel try to find “win-win” solutions that meet the needs of both spouses and the restructured family as a whole. Although each Collaborative Professional owes a primary allegiance and duty to his or her own client, each also knows that the way to serve the highest interests of the client is to act with integrity, in the spirit of cooperation and mutual respect.
Although a marriage may be ending, the Collaborative Process recognizes that relationships and obligations often continue—particularly when children are involved. It allows spouses to formulate an agreement that focuses on their most important individual and mutual goals.
When a client is considering Collaborative Practice, I use the test described in this article to decide whether to recommend it to them.
HOW DOES COLLABORATIVE PRACTICE WORK?
All participants agree to work together respectfully, honestly and in good faith in a series of four-way meetings between husband, wife and both lawyers. No one may go to court, or even threaten to do so, as long as they are in the Collaborative Process.
After signing the Collaborative Agreement in the first 4-way meeting, a discussion follows which identifies:
- immediate needs;
- goals for children during the separation and after the divorce;
- a process for identifying assets and debts and how documents for each will be obtained;
- parenting plan possibilities;
- financial objectives, such as how will earnings and expenses be handled; and
- the next meeting date.
You will each likely meet with your individual lawyer between 4-way meetings, so that you understand your options and have the opportunity to have questions answered. At subsequent 4-way meetings, each issue is discussed and various options are explored, until an agreement is reached on each issue.
People utilizing the Collaborative Practice have found the process to be efficient. Rather than issuing a formal subpoena to obtain a document, the document is identified in one meeting and brought by one party or the other to the next meeting.
ARE OTHER RESOURCES UTILIZED IN COLLABORATIVE PRACTICE?
This is one of the primary benefits of Collaborative Practice. If you encounter a difficulty (who doesn’t in a divorce?) you have the freedom to acknowledge that challenge and seek assistance from appropriate resources. For example, if you and your spouse are having difficulty determining cash flow from various investments which you each might retain in a settlement, a neutral financial planner who has been trained in Collaborative Practice can be consulted. He or she can advise one or both of you so that you have complete information on which to base a decision.
Similarly, if you find that you and your spouse are repeating old, unproductive patterns of communication during the process of divorcing, divorce coaches can be consulted to assist each of you in developing new ways to communicate. It may only take one, or a few, sessions with a coach, but the skills you develop will be invaluable over the long term and save you years of conflict after your divorce is final. No one takes Divorce 101 in college or intuitively knows how to divorce productively, especially when such powerful emotions are in play. Sometimes it just makes sense to get some expert advice.
Perhaps the most important resource can be a neutral child specialist. Parents often have different parenting styles whether married or not. It can be difficult determining what is best for children and even more difficult to put one’s own desires aside when evaluating what would truly work well for your children. A neutral child specialist can be invaluable in achieving some objectivity and sorting through difficult emotions and decisions about your children. Both parents meet with the specialist and you may decide that he or she should meet with your children too. What emerges is a more thoughtful, well-designed plan for your children that optimally meets their needs.
IS IT REQUIRED THAT WE USE THESE OTHER RESOURCES?
No. You only use those resources you believe would be helpful to you or your children. Although people often use these type of resources at some point in their divorce, the difference in Collaborative Practice is that, with the exception of the divorce coaches, the professionals are neutral and collaborate together. In addition, you both are able to access the neutral professional and costs are therefore minimized.
WHY DO THE LAWYERS HAVE TO WITHDRAW IF WE DO NOT SETTLE?
The “disqualification agreement” or “DA” makes clear that no one is pretending that we’re going to trial and no one is marshaling evidence to be used against the other at the “2% chance trial”. This principle is necessary to maintain focus—not just for the divorcing spouses but for their Collaborative Practitioners as well.
It is simply the case that a lawyer cannot be double-minded. He or she cannot be expected to creatively think about various options for settlement while also preparing for trial strategy. The effectiveness of both efforts would be undermined which is a disservice to clients. Limiting the terms of representation keeps the focus sharp throughout the Collaborative Process.
These limitations are necessary for divorcing spouses too. Clearly there are difficult emotions experienced during a family transition. One of the emotional stages of divorce is anger—no surprise there. The DA avoids unproductive anger that uses the legal battle as a threat, i.e., the proverbial “I’ll see you in court.”
In the unlikely event that a party feels that court is a better alternative, the Collaborative Process ends and both spouses must hire new lawyers to take their case to court. Fortunately, this rarely occurs.
HOW IS MY DIVORCE FINALIZED?
After settlement is reached, a Judgment of Divorce is drafted which incorporates all of the details of your agreement. Both spouses and lawyers sign the agreement and a very brief hearing is scheduled to submit the judgment to the court for the judge to sign. Only the spouse who filed for divorce, and his or her lawyer, need attend.
TESTIMONIAL
“[Deborah] was understanding and compassionate. She made sure that I understood the issues at hand related to my disability. That gave me peace of mind.” Mary D.
CONCLUSION
Many families and lawyers have determined that preparing to hand over one’s future to third-party strangers, i.e., judges, to make decisions about the people and things most important to divorcing families, just doesn’t make sense—particularly when there’s a 98% chance of settling anyway. Thus, to incur the emotional and financial expense of trial preparation is often illogical. Collaborative Practice provides a framework for working closely with an attorney trained in Collaborative Practice to formulate a thoughtful settlement that meets the needs of both spouses and the post-divorce family.
To learn more about Collaborative Practice, visit my website at www.FamilyResolutions.us or the International Association of Collaborative Professionals website at www.collaborativepractice.com. In addition, please feel free to contact me or my assistants, Kathy or Chris, at 269.428.3447 or via e-mail at [email protected]. We look forward to working with you to help you achieve a Collaborative family transition.
