Collaborative Divorce or Private Divorce

Overview of Private Divorces

Collaborative law is a unique private process for resolving disputes. (Generally, these disputes are divorce actions, but they can also include modification actions dealing with Parent-Child issues). Typically, both clients retain separate lawyers whose only job is to help the clients settle their disputes. The process involves open communication between the clients and their respective lawyers. All participants agree to work together collaboratively. They also agree to be respectful and honest and to participate in good faith to try to reach an agreement that meets both clients’ interests.

If the case does not settle in the collaborative process, the lawyers must withdraw and cannot participate in court proceedings. This agreement that the lawyers will not go to court requires the lawyers and the clients to look at the resolution process in a different way–which is the hallmark of the “Private Divorce” or a Collaborative Divorce.

The Collaborative Process and Why it is Successful

The collaborative process primarily involves informal discussions and joint meetings to settle the issues. The clients and their lawyers commit to resolving differences justly and equitably without resort to court proceedings. The process utilizes informal discovery, such as the voluntary exchange of documents and the engagement of agreed-upon neutral experts and other collaborative professionals. The lawyers help clients identify the information they need to reach a settlement. Each client’s questions and concerns are respected and addressed in a reasonable and dignified atmosphere.

Collaborative law uses problem-solving negotiations that avoid adversarial techniques or tactics. Most collaborative lawyers are specially trained in interest-based negotiation, which focuses on ascertaining and meeting the clients’ expressed goals, needs, and desires. Although the lawyer still advocates for the client in the collaborative process, no posturing, threatening, or deception is used to reach a satisfactory conclusion for the client. The clients are responsible for the outcome. They work with their lawyers to understand the legal consequences for both themselves and the other client. The collaborative process is designed to achieve each client’s best possible outcome under the circumstances, an outcome acceptable to them both.

Whereas the traditional litigation model is based upon each lawyer advocating one client’s position, the collaborative law model encourages understanding of the other client’s interests and concerns. Collaborative law gives clients an opportunity to learn interest-based negotiating techniques that will help them cooperate in the future, which is especially important if they have children. With the opportunity to craft more creative property, parental responsibility, and parenting time arrangements than the adversarial process allows, the clients can choose dispute-resolution methods as they arise that keep them out of the court system and minimize the possibility of future conflict.

When clients are committed to settlement, and litigation is not an option, creativity and flexibility in problem-solving become the norm. If clients believe bringing in a third party would help, they can jointly engage a mediator for a session, or bring in an arbitrator or case evaluator to break the logjam of a knotty issue blocking settlement. They may also elect to use the collaborative team model, which involves engaging a mental health professional (MHP) and a financial professional (FP) at the start of the case, both of whom are neutral. The MHP helps with emotional issues that often interfere with communication and block settlement, and the FP helps with budgetary and other financial considerations for both parties. The lawyers, MHP, and FP form the collaborative team, and the team’s goal is to help the clients achieve the best possible outcome under the circumstances. The possibilities in the collaborative framework are limited only by the clients' imaginations and their commitment to settlement.

One of the most attractive aspects of collaborative law for many clients is that it is conducted in private, except for the final “prove-up” of the divorce. In the privacy of a lawyer's or other collaborative professional's office, clients can discuss sensitive issues they might prefer not to air in the public arena of the courtroom.

Another appealing aspect of collaborative law is its scheduling flexibility. In litigation, hearings and depositions are often scheduled without regard for the parties’ schedules. In collaborative law, the clients and their lawyers schedule everything themselves and thus avoid inconveniencing each other. Also, the clients are not under pressure to dispose of their case according to a court’s docket guidelines. The collaborative law process lets clients move as quickly as they feel makes sense in their case, giving them time to emotionally process the divorce, experiment with different parenting time schedules, sell a home, or do whatever else needs to be done before they finalize their divorce.

Costs Involved

Some clients may ask if the collaborative law process costs less than litigation. There are two ways to look at “cost.” If the client is concerned about costs such as a damaged relationship with the other party, trauma to the children, loss of privacy, etc., the collaborative process is definitely less costly. If the concern is the amount of professional fees, collaborative law probably is less expensive than litigation, although collaborative law is not bargain-basement law. In fact, collaborative law has proven to be a value-added process, especially when the clients use the team model. Some clients also worry about duplicating costs if the case terminates. Information gathering in collaborative law is informal; thus, there is no need to deal with the elaborate rules governing the discovery process in litigation, which often fails to produce the needed information. Since information gathering is a major part of the litigation process, if clients cannot settle in collaborative law, they waste little of the time and money spent on the collaborative law information-gathering process.

Self Test

Collaborative law works for most clients; however, it may not be right for everyone. It certainly should be considered if some of these statements are true:

1. The client wants a civilized and dignified resolution of the dispute.
2. The client would like to retain the possibility of friendship with the other party.
3. The client wants the best co-parenting relationship.
4. The client wants to minimize or eliminate the damage, hostility, and conflict that litigation often causes children.
5. The client and the other party have friends and extended family with whom they both wish to remain connected.
6. The client recognizes the limited range of outcomes generally available in the court system and wants a more creative and individualized range of choices.
7. The client values honesty and integrity, dignity, privacy, and discretion.
8. The client wants to control the proceedings rather than leave the outcome in the hands of a third party (the judge or jury).
9. The client wants a process that is designed to achieve his/her best possible outcome under the circumstances.
10. The client understands that resolving conflicts with dignity involves meeting not only the client’s goals but finding ways to meet the reasonable goals of the other party.
    

Comparisons of Litigation and the Collaborative Law Process

Litigation 

1. Parties in disputes often feel intimidated, powerless, and not in control. A common litigation tactic is to make the other side so uncomfortable they are coerced into settling.
2. Focused on blame.
3. The law dictates the process and solutions.
4. Things often happen that you do not want to happen.
5. Adversarial atmosphere – use of hostile cross-examination, depositions, formal discovery.
6. Public.
7. Inconvenient scheduling – court dictates the parties’ schedules.
8. Secretive – play “hide the ball,” mislead and deceive.
9. Lawyers engage in positional bargaining.
10. Time and money are spent preparing for a trial that most likely will never occur. Little time spent on settling the matter.
11. Litigation expenses can become uncontrollable.
12. Cannot just “try” litigation.
13. Destroys family unity and integrity.

Collaborative Law Process

1. Seeks to help both parties feel safe, respected, in control of their lives, and as comfortable as possible while collaborating towards resolution.
2. Focused on solutions.
3. Adaptable process and creative solutions not confined to the law model.
4. Nothing happens unless you agree.
5. Safe atmosphere – designed to be civil, dignified, respectful.
6. Private and confidential.
7. Meeting schedules are agreed to by all participants.
8. Transparent Process – the same information is available to both parties.
9. Parties develop resolution options in joint meetings.
10. All money and time are spent toward settlement efforts – fewer wasted resources.
11. All case-related expenses are discussed. Parties’ resources are efficiently used.
12. Can try the Collaborative Law process – if it does not work, you can litigate.
13. Preserves the integrity of the restructured family.