Chapter Eight

Collaborative Divorce Alternative

Any sane person would agree that they would like to reduce conflict, reduce costs, and reduce time spent on a divorce. Enter a collaborative divorce. Simply put, collaborative divorce is a voluntary alternative dispute resolution process where the parties commit to settling their case outside the courtroom, assisted by their attorneys and other professionals. The parties use mediators, experts, and attorneys to come to a commonsense resolution to the issues that mean the most to them: their family and their children. The process is aimed at saving time, money, and, most importantly, reducing conflict.

If This Resonates, Collaborative Divorce May be Right for You

  • I want communication with my spouse to be respectful, both during the divorce process and afterward;

  • I want the needs of our children to take priority in the divorce;

  • I want to reach beyond the pain, frustration, and anger I am experiencing and work to plan for the future;

  • I recognize that equal consideration should be given to my needs and those of my spouse;

  • I like the idea of resolving the issues in our case creatively and cooperatively; and,

  • I want to maintain control of my divorce, and not have the courts decide for me.

Unlike the litigation approach, the collaborative divorce process works to create a fair resolution for both spouses and for the children. Collaborative divorce is not a “regular divorce” that is done “collaboratively” (in a friendly manner), it is a fundamentally different and non-adversarial approach to resolving the case. The process takes a lot of the fear out of a divorce and ensures better outcomes for everyone involved, particularly children.

Parties who want to engage in the collaborative divorce process each hire attorneys with training and expertise in this area of law. These types of attorneys are called collaborative divorce attorneys. However, each side hires their own collaborative attorney as the same lawyer cannot represent both sides of the case due to ethical concerns. (Learn more about the history of collaborative divorce from Wikipedia here).

Read on to learn all about whether collaborative divorce is right for you:

Is a Collaborative Divorce a “Friendly Divorce” or Something More?

Definitely something more. The term “collaborative divorce” does not mean “a friendly divorce” – it is a term of art that refers to a precise type of divorce process with comprehensive guidelines, rules, and best practices. The process should facilitate a collaborative environment where conflict is reduced, costs are minimized, and the parties are encouraged to reach a negotiated resolution in the best interests of their children and their family. Collaborative divorce attorneys have unique training in this process.

Collaborative Divorce vs. Mediation

Mediation is the process where two spouses go before a neutral third-party to help facilitate a resolution to the divorce. A mediator does not advocate for you or your spouse whereas a collaborative attorney does. Key differences also include:

  • Your collaborative attorney will advocate for you whereas a mediator is a middle person;

  • Your collaborative attorney will be with you throughout your case whereas mediators only see you on the day of mediation (or during further appointments); and,

  • A mediator’s role is primarily to get a deal done and signed (any deal) whereas a collaborative attorney’s role is to get you the best deal possible.

Most often, collaborative cases involve both a mediator and two collaborative attorneys (one for each side). The collaborative attorney will advise you on what is best for you and the mediator will work to achieve a resolution that is best for everyone (and something that both spouses will agree to).

So What is So Different About a “Collaborative Divorce?”

The defining feature of collaborative divorce is the commitment to resolving disputes in a negotiated fashion (as opposed to court litigation). A collaborative divorce is one in which the parties and their counsel all commit to resolving the matter out of court. The parties each retain an attorney trained in the collaborative divorce process, retain necessary experts, and discuss a resolution.

What Does the Collaborative Process Look Like?

The collaborative process will involve collaborative team meetings to work on the settlement in an orderly manner. At each meeting of the full team, each party to the case will have the benefit of the advice of that party’s own collaborative counsel. Each party, with help from counsel, will discuss that party’s needs and interests, as the entire negotiation is an “interest-based” negotiation.

Besides full team meetings, the parties can meet individually and as a couple with subject experts, such as a child specialist, financial expert or collaborative process facilitator. These meetings for parties with a specialist involve work to prepare for the subject of subsequent meetings, and to support each party’s ability to participate in the best fashion to achieve resolution and articulate any concerns of that party. In appropriate cases, the attorneys may recommend the appointment of an individual or joint coaches for the parties. Often, the collaborative divorce process facilitator will attend each collaborative team meeting. This can sound like a lot of additional professionals, but generally what happens with a collaborative case is the other professionals are hired at the outset to promote settlement, rather than being hired when issues prove intractable or experts are needed for hearings.

A case plan is worked up at the start of the collaborative case, with each team member agreeing on the plan. Each meeting has the agenda and duration decided by the parties. Usually, there are five or more meetings of two to three hours, with an agenda agreed and circulated before each session. After the meeting, notes are circulated reflecting the interim commitments and schedule for the next meeting.

What are the Benefits of a Collaborative Divorce?

  • Saving time;

  • Saving money;

  • Rapid and comprehensive exchange of information;

  • The ability to reach agreements that are complex and fine-tuned to your unique case;

  • Attorneys committed to engaging in civil and respectful representation;

  • Protects the kids from exposure to conflict;

  • Privacy and confidentiality; and,

  • Commitment by each party to the agreement, reducing subsequent disputes.

Does a Collaborative Divorce Cost Less?

Collaborative divorces often cost less, but not always. However, even where collaborative divorces are expensive during the case, they often provide long-term benefits that reduce costs. Negotiated resolutions with common sense terms are often challenged less in subsequent court proceedings. The parties are far more likely to comply with something they agreed to rather than something a court forced them into. Moreover, the collaborative process during divorce teaches the parties how to resolve disputes with each other and reduces confrontation later.

What Difference Does a Collaborative Process Make My Family?

The collaborative process will keep your family out of court and reduce conflict. It will also teach you the skills to resolve disputes without litigation. In fact, it can even show your children that intense disagreements can be resolved amicably, quickly, and in the best interests of a family.

While a collaborative case process is never a guarantee that issues will not arise in the future, the collaborative process will certainly provide tools for a more peaceful future for your family. A shocking number of family law matters end up in “post-decree” litigation for years and years after the original case is over. Families who collaborate can avoid going to court – both in the original proceeding and in the years that follow.

Can I Avoid Disclosures by Working Collaboratively?

No. Collaboration requires complete and total transparency (see below about whether the collaborative process is right for you).

To build trust, achieve a resolution, and ultimately a separation agreement, you will need to provide your spouse with full disclosure. The collaborative process is not the place for hiding the ball. The court will expect full and accurate disclosure and failure to disclose information could be grounds to reopen the case later.

Most important, however, failing to disclose documents and information is not in the spirit of collaborative divorce and will cause more confrontation than simply going to court in the first place. A lack of honesty and disclosure during the collaborative process could explode into full-fledged litigation and distrust builds and confrontation rises. The litigation that ensues because of dishonest or not transparent collaborative negotiation could be even worse than had the parties simply litigated the case to begin with.

Is a Collaborative Divorce for Everyone?

Absolutely not. Numerous cases are not suited to collaborative divorce. When parties are incapable of truly collaborating or circumstances are so confrontation is inevitable, a collaborative divorce may not be the right choice. For example, in cases with domestic violence, it could be impossible to collaboratively negotiate a resolution. Your attorney should advise you about the costs and benefits of the various approaches to resolving divorce and ensure that your approach meets your needs.

Is Collaborative Law the Right Approach for My Case?

Almost any case can benefit from the collaborative process. Generally, however, Griffiths Law will not advise a client to enter into the collaborative process if the matter is not suited to it. A case is inappropriate for collaboration if it is reasonably predictable that litigation in court may be required to achieve resolution.

Good collaborative divorce attorneys will assess the suitability of your case at the outset and provide you with options. Even if we advise you that your case is not suitable for collaboration, we will try to resolve your case with as little friction as possible. Indeed, there are many cases that are negotiated outside the strict formal processes of “collaborative law” but in a friendly, low conflict manner. Although these cases are not technically “collaborative cases,” the process and result can achieve the same ends.

However, be advised that the most significant driver of confrontation in a case is the behavior of the two parties. If your spouse will start a fight with you (and many will), the collaborative process will not be of much use and an attorney can do nothing to change who the person you married is.

Warning: Liars, Cheats, and Manipulators Need Not Apply

The attorneys at Griffiths Law sometimes see cases where one of the two spouses is pushing for a collaborative or cooperative solution to a case for nefarious reasons. These individuals want to “collaborate” because they are interested in hiding assets, deceiving their spouse, and getting a deal signed before anyone notices. We call this “false collaboration.”

If your spouse has a history of manipulation, untruths, and lack of disclosure, collaborative divorce may not be right for you. The collaborative process is inconsistent with people who are dishonest as it requires a great degree of transparency and trust.