COLLABORATIVE DIVORCE: PANACEA OR RECIPE FOR DISASTER
Previously we blogged on alternate dispute resolution methods ("ADR") such as mediation and arbitration. "Collaborative Divorce" is another ADR method.
"Collaborative Divorce" is defined as a form of alternative dispute resolution for divorcing couples where a team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however, they work cooperatively with their spouse. The collaborative process uses informal discussions and conferences attended by both spouses and their attorneys to settle all issues. The collaborative process is premised upon an atmosphere of honesty, cooperation, integrity, and professionalism. It requires that both spouses, with the assistance of their attorneys, provide all pertinent documents and information relating to the issues to be settled. In the event that experts are necessary, it encourages the use of jointly retained experts. Both spouses and attorneys are required to work together toward a shared resolution that is geared toward the future well being of the family. If the parties cannot reach a settlement through the collaborative process approach, the collaborative lawyers withdraw from the case and the parties then retain trial attorneys to pursue the matter in court.
Is collaborative divorce for everyone? I am a divorce litigator and people often come to me with complex, high conflict and/or high stakes cases so perhaps I am biased in that regard. Even still, I cannot see collaborative divorce being for everyone to be used in every case. Just as I wrote about my concerns about mediation, i.e. the possibility of a spouse taking advantage of an imbalance of power; the settle at all costs posture whether the resolution is fair to both parties or not; etc., I think that those pitfalls are just as possible in collaborative divorce.
For instance, I recently heard of a divorce case described as "freakish". At the same time, the husband was described as a "power broker" and the wife was a housewife with a young child. Most confusing was the revelation that the parties were involved in a "collaborative divorce."
To me, this sounded like a recipe for disaster. How can a "freakish" divorce be collaborative? If both parties are "power brokers" perhaps collaboration could work though it seems like both would want to "win." Collaboration seems unlikely when one party is a "power broker" and the other is not - capitulation seems more likely than collaboration. Ever wonder why the more powerful spouse wants to mediate?
Perhaps for a garden variety divorce with two reasonable people, this can work. In most other cases, it seems that the interests of the weaker party could be compromised.
I've trained thousands of lawyers worldwide in how to do this work. As an emininent London solicitor put it after he'd handled a number of cases this way, "Anything that works this well in practice surely ought to be possible theoretically." You'd be very surprised. Talk with Neil Kozek, in Manhattan, if you're in fact curious about what's actually happening with more challenging couples. You could not do it, because you have not yet learned how. Neil does it every day. So do I. It's not for every client, or every lawyer. But surely you don't think that most people come out of litigation happy with process or outcome? The data is clear: they do not. Our data is equally clear: over 90% of couples who embark on collaborative divorces achieve full settlement of all issues, and are happy enough that they are paying their bills and they are not suing their divorce lawyers. I don't know any hardball divorce litigators who can show this kind of success. A justice of the Washington Supreme Court quotes a study in that state that indicated that well over 80% of the nominal "winners" in litigated divorces were very unhappy with process and outcome. She dryly observed that one can assume 100% of the losers felt unsatisfied, resulting in 90% overall rate of dissatisfaction.
Any lawyer worth his salt would prefer facts to speculation. So, go to www.collaborativepractice.com (website of International Academy of Collaborative Professionals) to find interviews and ongoing statistics on actual client experiences with collaborative divorce. You can also find two or three angry client blogs out there, if you look. That's three. How many angry clients after traditional divorce representation?