Curtis Cowan Law > Collaborative Divorce: Better, Cheaper, and the Wave of the Future

Posted on October 14, 2013

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From Curtis Cowan, Esq.:

Want a cheaper, less stressful, fairer divorce process? The Collaborative Divorce Process is the answer! Unfortunately, the public is currently mostly unaware of the Collaborative Divorce Process and its tremendous benefits. Even most family-law attorneys, unless they have been trained in the Collaborative Divorce Process, have not embraced the Collaborative Divorce Process mostly due to a lack of understanding and misconceptions about it.


Let me say up front that the Collaborative Divorce Process is today what the home computer was in 1981. In 1977, Ken Olsen, the founder and CEO of Digital Equipment Corporation purportedly said, “There is no reason for any individual to have a computer in his home.” Four years later IBM began to market its first home computer, but few people had them. What would a home be today without a computer or several computers? I’ve heard many family-law attorneys say, “Why would anyone use the Collaborative Divorce Process that precludes his/her attorney from representing them in court?” Well, the truth is too few divorcing couples today are utilizing the Collaborative Divorce Process. However, just as the use of home computers exploded as their costs and uses improved with public knowledge, the Collaborative Divorce Process will become the standard for divorcing couples in the future as knowledge of its costs and benefits become generally known.

Most uninformed attorneys believe it is merely a process whereby everyone, including the attorneys, tries to “play nice” and is, therefore, not suited for most spouses who are at great odds with each other – even hate each other. The belief is that most high-conflict couples will end up in court anyway, and it would be a waste not to be able to use the attorneys that started the process. That is one of the biggest misconceptions about the Collaborative Divorce Process, among many others. To the contrary, the Collaborative Divorce Process is ideal for spouses in high conflict. There are many advantages to the Collaborative Divorce Process for all couples seeking dissolution of their marriage, regardless of their level of feelings toward each other. Collaborative Divorce is a safe, structured, private and confidential process. The spouses maintain complete control of the outcome. The process involves “interest-based” negotiations. The spouses engage truly neutral professionals, except for the attorneys.

The process is designed to meet both spouses’ goals and interests as much as possible. It promotes a creative result, not bound by the law. In the Collaborative Divorce Process, attorneys are not neutral and still zealously “advocate” on behalf of their clients, but the attorneys’ method of thinking and advocacy is geared toward creative problem-solving resolutions, not toward an adversarial presentation to a judge.

This different frame of mind of the attorney is critical to the success of the Collaborative Divorce Process. The resolution does not rest in the hands of a judge or on the strict rule of law.
There are three primary principles defining the Collaborative Divorce Process: First, each spouse agrees with his/her attorney that the attorney is precluded from taking any issue to the court for resolution. If the spouses are unable to reach an agreement and must resort to the court, they must obtain new counsel to represent them in court. While at first blush this may seem harsh and unreasonable, the rule is one of the main reasons the Collaborative Divorce Process works so well. This requirement guarantees that both participating attorneys will be totally and exclusively motivated to have the process succeed. If the attorneys still have the fall-back option of going to court, the mandatory confidentiality of the Collaborative Process would be destroyed, the attorneys’ thought process would not properly transform into the required and different collaborative mode, and the option of litigating the case would actually stifled the required creative thinking of the attorney. The attorneys must be 100% focused on achieving an agreement, not planning for possible fall-back litigation. Because collaborative attorneys cannot litigate on behalf of their clients in court, all participants are fully invested in finding the “workable and realistic solutions” to all problems, as opposed to a “court-dictated resolution.”

Additionally, the method and manner that attorneys typically negotiate on behalf of clients is greatly improved by the certainty that the attorney will never litigate the case. When litigation is still an option during negotiations, attorneys typically hold things back so as not to disclose fully their hand or strategy. The attorneys’ subconscious minds, if not their conscious minds, continue to play the “what will I do and how will I present to the court if we don’t settle” game.

Knowing one has a fall-back option if settlement is not successful naturally makes settlement less likely to occur. In the Collaborative Divorce Process the attorneys’ cooperation, trust for one another, and openness are substituted for the traditional adversarial threats, secrecy, and guardedness, making it much more likely ultimate success is achieved.

Second, the process is based on “transparency.” Everyone agrees to exchange all relevant information and all experts are neutral. There is no need for formal expensive discovery requests and hearings to obtain information. All relevant information is readily and quickly disclosed. In traditional litigation an enormous amount of time and money is usually spent gathering information that is often not readily forthcoming. The information is almost always finally obtained after months and months of effort. In the Collaborative Divorce Process, it is fundamental that no relevant fact or data is hidden. This is only a problem for those spouses who want to be dishonest. A spouse who wants to be dishonest is free to go the traditional route and spend tens of thousands of dollars trying to be secretive, which will 95% of the time backfire on them after great expense.

“Transparency” is critical to the Collaborative Divorce Process. A spouse may despise the other spouse, but still must be willing to be honest. In the future, traditional litigation will only be used when one of the spouses wants to be dishonest – a telling sign for disaster.
Third, the focus on reaching an agreement is based on “interest-based” negotiations, seeking creative solutions that work for the entire family, not necessarily based on the rule of law. Interest-based negotiations identify the real priorities and interests of each spouse, the needs of the children, and the common goals for the family. The negotiations encourage empathy and acknowledgment that the parties may need to be connected well into the future. Interest-based negotiations seek creative solutions to satisfy the parties’ common goals and adverse interests, irrespective as to what the law may otherwise provide. Judges are bound to follow the law; they only have discretion in determining the facts to apply to the law. The law, however, is not fact specific.

The law when applied to unique situations is not always fair or does justice. Thus, the law is often irrelevant in interest-based solutions. Interest-based negotiations recognize the uniqueness of every family and that the legal solution for one family is not appropriate for all families.

The Collaborative Divorce Process is also very structured. At the initial joint meeting, the spouses and participants sign a “Participation Agreement,” which sets forth the goals, rules and processes to be followed. Collaborative Divorce involves joint meetings with all participants following a specific agenda. The joint sessions are followed up by debriefing meetings between the attorneys and professionals. A Collaborative “Team” is created, consisting of the parties, their respective attorneys and the neutral professionals.
Typically the most common neutral professionals are financial experts (CPA’s; financial planners) and a qualified mental health facilitator. As with the attorneys, these neutral professionals should be specifically trained in the collaborative process as their roles completely differ from traditional litigation.

Many spouses wonder why a mental health professional is even needed as part of the Team. However, the mental health professional plays a very important key role in the success of the collaborative process as they are the Team’s process facilitators. Although trained and licensed as a mental health professional, including collaborative training, this professional is often referred to as the Team’s Neutral Process Facilitator. The mental health professional does not act as a therapist treating the spouses. Rather, they use specific unique tools for emotional regulation, keep the focus on the enduring needs of all family members, focus on short-term interventions and keep the Team in the process toward a joint solution. They attend all joint meetings, set the agenda, set up the dynamics of the room, manage the emotions during meetings, assist in developing a co-parenting relationship, and offer creative solutions. The list of the value of a mental health professional is endless. Divorce is a major, emotional change in life, regardless as to whether the spouses are cooperative or at war. The mental health professional will listen to each party’s story, make referrals when necessary, and help the process move forward whenever it seems to stall.

In the debriefing meetings, the mental health professional summarizes what went well, what did not go well, and provide constructive feedback on the how to move forward. The role of the mental health professional in the Collaborative Divorce Process is perhaps the biggest distinction between collaborative and traditional litigation. There is no equivalent process facilitator in the court litigation system, which is one to the greatest flaws of the court litigation system.

Other possible neutral professionals may include child specialists, corporate, tax, and estate attorneys, business and real estate appraisers, and insurance consultants, as well as others. While these other professionals are not always needed, the concept of all neutral professionals as Team members is to have the most qualified neutral professional doing what he or she does best when such services are needed.

So, you ask, “How is all this cheaper and less stressful than traditional dissolution of marriage litigation?” Good question! First let’s compare the two. Litigation is based on a blame game and is demoralizing, dehumanizing and generally destructive to families. It breaks families apart, but offers no solution for healing and recovery. Litigation gives 100% of the power of resolution to a third party (Judge), who knows nothing about the true dynamics of the family, except as to the conflicting facts presented, often by biased conflicting experts, at trial. Judges determine parenting plans and economics only.

They do not resolve emotions or relationships. No judge has ever enhanced a relationship between divorcing couples. Collaborative Divorce, on the other hand, concentrates on how to solve problems, not who is at fault for them, and the spouses themselves, with the aid of their attorneys dedicated to resolution as opposed to judicial persuasion and truly neutral professionals, maintain 100% of the power to decide their own outcome. Collaborative Divorce can assist with the emotional aspects of divorce and can enhance the future relationship of parents who have children. It empowers the spouses with the tools and ability for hearing and recovery.

Litigation is adversarial in nature.

Attorneys attempt to marshal the facts in favor of their clients and attempt to persuade the judge to find in their respective client’s favor. In the Collaborative Divorce Process, attorneys, while remaining advocates for their clients, are more concerned with reaching an agreed resolution that solves problems, not exacerbate them.

Most litigation cases involve multiple pre-judgment hearings before the judge, a long expensive discovery process, and ultimately preparation for and attendance at trial. Typically a contested divorce will take 17 months (often longer) from filing to final judgment. In the Collaborative Divorce Process, there are no court hearings, discovery is quick and easy, and there is no preparation for or attendance at trial. Typically a Collaborative Divorce will take about 17 weeks from inception to agreement.
When experts are needed in traditional litigation, each party usually hires his/her own experts, and the experts are not neutral, but rather biased in favor of his/her client. The experts in Collaborative Divorce are not only specifically trained in the collaborative process, but are also trained as neutrals.

All attorneys and experts bill by the hour. Because significantly many more hours are spent in traditional litigation than in the Collaborative Divorce Process, the Collaborative Divorce Process is usually much less expensive.

I am absolutely convinced that the Collaborative Divorce Process is far superior to the traditional adversarial litigation process. It is better for the parties; it is less expensive and time consuming; and it is the wave of the future.

Read more at Curtis Cowan Law.

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