Way back to 2000, when collaborative law practice was first introduced in Colorado, people were enthusiastic to sign up, but they soon learned they had no idea what collaboration was really about. Collaboration sounded a lot nicer than litigation, so the first few years of training were very popular with attorneys who were hoping for a way to divorce their clients that didn’t involve court hearings and nastiness. People saw it as “friendly” and easy divorce.
Collaboration isn’t about being nice, it’s about working together. And when you’re talking about people in the middle of a divorce, working together proves very challenging most of the time. Parties who can work together easily usually aren’t facing divorce. And the irony is that while collaboration is a better way to divorce on virtually any measure you want to look at, it is decidedly not about ‘making nice’ and it is usually not easier than litigation – especially for the spouses.
In order to collaborate, you have to be willing to consider solutions that you may not want. You have to be willing to compromise. You have to be willing to care as much about how the other person comes out of the divorce as you do about yourself. That can be really difficult when the other person is dumping you or is mad at you for dumping them. Affairs, financial stupidity, bad tempers and all the things that made a person think about divorce in the first place made collaboration hard.
Fast forward nearly two decades and while collaboration is still going strong, the same misconceptions about what it is continues to exist.
So, what makes it better? First of all, the spouses agree that they will try to find resolutions that work for everyone. Not just them. It means being painfully honest about everything that matters. It means no surprises. It means giving up on things that you want not because you get something in return, necessarily, but because you know it is better for everyone if you do.
It also means you can’t indulge your worst instincts. There aren’t any nasty letters putting someone in their place. You cannot hide behind your advocate and say “Oh, I didn’t know about that letter”; clients are doing the heavy lifting in collaborative cases as opposed to their attorneys. There are no assumptions about why someone has or hasn’t done something you think they ought to have – instead there are requests for information without assumptions as to what has happened.
The end result is agreements that stand the test of time. Virtually all collaborative attorneys agree that the resolutions found through collaboration are more nuanced, more comprehensive and generate virtually no post-decree litigation.
The lack of conflict after the divorce is one of the biggest selling points of collaborative practice. There are many reasons why collaborative divorces do not generate post-decree conflict. The first, and most obvious, is that people who are willing to settle are unlikely to run into problems they cannot solve; when a problem arises they are usually able to figure things out. The second reason is that the agreements reached in collaboration are generally more thoughtful and they avoid many problems off the bat. Collaboration is a process that deliberately includes detailed examinations of the potential benefits and risks of each area of agreement.
Lastly, one of the reasons collaborative cases don’t usually end up in post-decree squabbles is that the very process of collaboration teaches divorcing spouses a better way of resolving problems.
Is collaboration cheaper? It is certainly cheaper than full-blown litigation, but that’s not a very apt comparison when you realize that only a fraction of cases go to full-blown litigation. Most cases actually settle. Compared to most cases, collaboration can actually cost a bit more if you have to use other experts (like child specialists or financial neutrals) to figure out solutions.
That cost, however, results in much stronger and fairer agreements and, in the long run, virtually every divorce attorney who has practiced in both areas would tell you that if they had to choose, they would without hesitation opt for a collaborative divorce.
The other cost that we don’t always think about is of the emotional and stress-related fallout from an adversarial process. Divorce, even collaborative divorce, is horribly stressful for most people. When you add the usual divorce process, which is based on both parties seeing the other as the adversary and is usually accompanied by hostility and hurt feelings, it’s not a good mix. Add adversarial proceedings on top of what is already an emotionally difficult transition and – well – collaboration sells itself. Why do something the hard way when you can do it with help, with thoughtfulness, and in a supported atmosphere?
Ann Gushurst has been practicing exclusively in Family Law for most of her law career, and her current practice is a mixture of litigation, collaboration and mediation. She was recognized by The Best Lawyers in America© in 2018 for family law and was selected to Colorado Superlawyers from 2010-2018. She was also included in the list of Top 50 Women Lawyers and Top 100 Lawyers.