The Smart Divorce: Collaborative Law

Collaborative law was created in 1991 by Stuart Webb, a lawyer in Minneapolis, Minnesota. The concept is that the lawyers work strictly toward settlement. Clients and their lawyers sign a contract in which they agree not to go to court, and to provide full and complete financial disclosure. The purpose of collaborative law is to create an environment in which the separating couple feels safe, in which both parties feel that they are able to make informed decisions about their own destinies, and in which they can work constructively despite their fears, anger, and feelings of revenge.

The lawyers fulfill their traditional role of advising their own clients on how the law applies to their individual situations. But they also help their clients to reframe their thinking — to develop goals as opposed to taking positions, and to make good and ethical choices. When the divorcing spouses meet, their lawyers are at their sides to help them conduct interest-based negotiations based on needs, not rights, and to work toward a parenting and financial plan that is acceptable to both clients. If either client wishes to end the collaborative process and go to court, both lawyers and other members of their firms must remove themselves from the case.

If settlement is difficult to achieve, a team of specialists is formed to help the separating couple through the process. Specialists can include the following:

• Divorce coach. A divorce coach may be retained by each of the separating spouses to ease communication, diffuse any conflict, and help them individually deal with the impact of the divorce. The coaches are mental-health professionals who are specialized in helping the family, but whereas therapists try to help people change or look at their past, divorce coaches are focused on the goals of their clients and their families, and on how to attain those goals.
• Child specialist. This is a neutral third party who will work with the parents to help them understand their children‘s needs and wishes. This person is the voice of the children, and may meet with them. He or she may develop a comprehensive parenting plan to attach to the separation agreement.
• Financial professional. Also a neutral third party, this professional provides advice and assistance regarding the financial settlement.

Collaborative law helps clients work through their issues at a pace they both find comfortable. The team approach helps to defuse differences and to keep the focus on the children’s best interests. And the fact that there’s no option to litigate frequently produces constructive settlements.

In order for it to work, however, both parties must agree to participate, and both must sign the contract that removes the possibility of litigation from the process. They must commit to full financial disclosure and exhibit mutual respect and honesty. Each must retain a collaborative lawyer.

If you are trying to keep legal fees to a minimum, the expense of the specialists involved can be prohibitive. Not all lawyers are supportive of the process, and the no-litigation agreement means that if a settlement is not reached, your lawyers must withdraw and you must retain new representation. (Collaborative lawyers may assist in the transfer of files.)

Collaborative law is not practiced in all states. To find a complete list of collaborative professionals by state, county, or province, visit the International Academy of Collaborative Professionals website: www.collaborativepractice.com.

Deborah Moskovitch is the creator and facilitator of The Smart Divorce, a consulting service that provides tools and strategies for individuals contemplating or going through divorce. This article has been excerpted from her book The Smart Divorce (Independent Publishers Group, 2007). The Smart Divorce