Benefits Of The Collaborative Divorce Process Compared With The Traditional Adversarial Process
There is a team approach in the collaborative divorce. Attorneys and professionals in allied divorce related fields are used to lead the collaborative team in their fields of expertise. They are: 1) a financial professional for asset, obligation and spousal support payment issues; 2) a licensed mental health professional as a divorce coach attending to the clients’ emotional divorce while the legal divorce is proceeding; and 3) a licensed mental health professional who serves as a child specialist in aiding the clients with the parenting aspects of the case, including the parent plan. These allied professionals do a superior and more cost effective job than do attorneys, who often attempt to take on these skill sets at a higher fee structure.
Preserving Family Relationships.
The entire collaborative team, attorneys included, has a guiding principle of helping preserve the transitioning family’s connections, especially where children are involved. Too often we see families torn apart and children needlessly suffering because of the sometimes hostile and often competitive, win-lose nature of the adversarial divorce.
Control and Client Empowerment.
The collaborative attorneys perform many of the same kinds of legal functions as they might ordinarily – providing legal advice, exploring legal options and explaining the law. However, there is a strong emphasis on empowering the clients by allowing the case to be theirs’ rather than one taken over by the attorneys, as can easily happen in the adversarial divorce.
Confidentiality of Family Affairs.
Other than meetings occurring in the offices of any of the collaborative team members, there is no public display of the family in any kind of third party or public forum.
Family Specific Solutions.
Because the collaborative team is working together to support solutions that can work for both clients, there is not only the goal but the flexibility to create solutions that are particularly unique for the family being helped in the collaborative process.
Voluntary disclosure is the norm in the collaborative process rather than the use of subpoenas, interrogatories, depositions and other forms of discovery routinely used in the adversarial process. There are safeguards in the collaborative process even with voluntary disclosure, including carefully screening the perspective clients before undertaking each collaborative case, having a financial professional review all financial documents and the ability in the collaborative process to request and voluntarily receive any documents deemed important to the understanding of the financial aspect of the case.
At the outset of a Collaborative Divorce case, clients, attorneys and allied professionals agree they will not litigate the case nor be involved in any court intervention. Thus, before any Collaborative Divorce case is initiated perspective clients are screened by the attorneys and/or the mental health professional serving as the divorce coach. There needs to be a strong level of assurance among the team that clients are appropriate candidates for the process and have a commitment to working collaboratively when differences arise in the settlement discussions.
In addition to the team members strongly supporting the clients in reaching a successful resolution of the case, sensitivity to the clients’ underlying interests, intervening when there are signs of a communication breakdown and being creative around decisions on the issues are all built into the Collaborative Divorce process. And, when a true and reasonable impasse does occur on any issue between the clients, alternatives to terminating the process are used to resolve matters. These can include binding arbitration of financial issues and the use of a child custody evaluation to help settle issues around the children. If a case is terminated, which happens rarely, the agreement previously made are codified into a stipulation and order and the clients receive help transitioning into representation by an adversary attorney.
Rupturing Family Relationships Instead of Supporting Them.
Some adversarial attorneys may advise against using the Collaborative Divorce process because the risk is deemed too high if the case is not completed and the collaborative attorneys withdraw. What the adversarial attorney has to offer in such a situation is a final litigation “resolution” of the case. In addition to the obvious risks of litigation in ceding control of the case to third parties (attorneys and judges), there are other difficulties that answer the question of why clients look for alternatives.
In the adversarial process, while a final result can always be counted through litigation, many adversarial cases can be deemed failures for the family, despite the assurance of a final result, even absent litigation. In the adversarial divorce, families are prone to become divided given the competitive, win-lose nature of the process that often characterizes adversarial cases. This only serves to exacerbate or solidify divisions between the divorcing spouses. In addition, the children’s suffering may be heightened because of parental hostility that can be enabled in the adversarial divorce. And, the resulting financial cost to families is nearly always becomes exponentially greater. The family in an adversarial divorce receives little or no support on any level in the adversarial process, and in this life-changing event more needs to be asked of the legal profession than what it has historically offered.