When a family is changing as a result of a separation or divorce, however, for most people the stress is going to be greater. These family transitions can be emotionally trying and can cause financial problems. While I cannot promise to make the stress of family transitions disappear, I recognize that with the added stress comes the need for me as an attorney to approach my client with the upmost respect, empathy, and intelligence.

My goal is to help clients get to a place where informed decisions can be made that reflect the actual interests of my client. By taking this approach I know that any agreement that is reached reflects the actual interests of my client, rather than having a Judge or Commissioner make a ruling based solely on the “law”.

Collaborative Divorce: An Alternative to Traditional Litigation

During my initial consultation with a potential client, I explore whether the client is a candidate for “collaborating” in the dissolution of the marriage rather than for “litigating” the case.

My preference is to collaborate, not litigate. Anyone can litigate. All you need to do is hire a litigation attorney who will take over the case, tell you what you need to do, when to show up for deposition, hearings and trial, and then move on after the case is done. While you are asked for input along the way, the courts and your attorney control the litigation process.

A collaborative divorce is very different. The clients drive the process, with the help of collaboratively trained professionals. All the participants sign a Participation Agreement at the start of the process. Among other agreements, by signing the Agreement everyone who signs on to the process is agreeing to take part in the process with integrity and honesty. The goal of the process is to do everything necessary to allow the clients to build a resolution that reflects as much as possible each person’s interests.

Studies have showed that there is a much higher satisfaction rate for persons who have gone through the collaborative process than those who litigated their divorce.

My experience has been that parties who have worked from a place of integrity and honesty to put together an agreement have fewer problems in the future. The agreements that are being built in the collaborative structure are more durable than the decisions handed down by courts when the parties are unable to reach agreement on their own. This results in savings to the parties as they are not spending money on attorneys in the future trying to undo the results of taking their case to trial.

It is important to note some of the complaints made about Collaborative Law. Here are two of the main complaints that I have heard from litigation attorneys and my comments to those complaints:

If the collaborative case terminates each attorney is disqualified from representing his or her client in court on this or any other matter. Some litigation attorneys claim that this is unfair to the clients and results in higher attorney’s fees being paid.

It is true that if a collaborative case terminates the attorneys cannot represent either of the parties in the litigation. Thinking about this for just a little bit, however, leads to the rationale for this and to the conclusion that there could be no other way to guarantee the protection of the clients’ best interests.

• By signing the Participation Agreement each attorney is fully committing to the collaborative process.
• By signing the Participation Agreement the clients are committing to being honest and to acting with integrity.

Imagine what would happen if there was no disqualification provision. If an attorney wanted to use the process to gather information about the other party for later use at trial, that attorney could gain an advantage for their client by instructing them NOT to be honest. Thus one side would be acting with integrity and the other would not. The disqualification clause is present because it protects the clients. It means that each person on the Team is committed to the process and that there is no ulterior motive on the part of any Team member.

I have handled cases that started in the collaborative model and then moved to litigation when they could not be reached. The case should have been in litigation from the start. Now we have to start all over.

It is true that some collaborative cases terminate because the parties are unable to reach agreement or for some other reason. When that happens it is necessary to bring in new attorneys. However, it is important to remember that:

• There are many litigation cases where a party has two, three or more attorneys because the party is unhappy with their prior attorney.
• It is not a question of “starting over”. In the Participation Agreement there are provisions that allow for the work done during the collaborative process to be moved on to the litigation process. This requires agreement of the parties. In most cases the parties are cost-conscious and see no reason to prevent some of the work product to move to the new attorney. In reality, instead of “starting over”, the new litigation attorney is provided the majority of factual information he or she needs to represent the client’s interests in court.

The focus of family law cases needs to be on the well being of the parties and the children, if there are children of the marriage. It is important that we as attorneys support our clients’ desire that we represent them with integrity and honesty in the divorce process with the ultimate goal being to fashion final agreements which reflect the goals and best interests of each party, including the best interests of any child(ren). While a cooperative approach to lthe divorce process offers the opportunity to realize these goals, extreme litigation most likely will not.

Advantages of Collaborative Divorce

While I understand that each case is unique, my clients have mentioned that they found the following advantages to choosing the collaborative process:

• The interests and needs of my children were kept at the top of the list throughout the process.
• We finished the process more quickly than we would have in litigation.
• My desire to keep the costs of the process low was respected by the Team.
• Given that I am happy with the agreement that is reached I do not foresee having to hire an attorney in the future to try to make changes.
• I know if anything comes up in the future that my ex and I cannot reach agreement on that the Collaborative Team is there to help us reach agreement.
• This process was not filled with hostility and resentment.
• I found my ex and I communicating much better during and after the process then we were before. The children notice the better communication between us, which is a great positive.

If you have questions, or are seeking legal representation for a divorce, please contact us for assistance.