How Collaborative Divorce is Different
Settling is Better Then Fighting in Court
I am a fan of settling divorce cases amicably. In any venue, in any way– if people can settle in a way that makes sense to them, that is good news for them and their families. All lawyers who work with people in divorce should, and good lawyers usually do, make every effort to settle cases before a judge hands down a decision after a trial. People may engage in a common effort to reach a resolution in a cooperative rather than competitive way in any negotiation process. However, not every case that settles this way is a Collaborative case.
Collaborative Practice Expands Settlement Opportunities
Collaborative Practice creates a safe space inside which parties hold frank and open discussions designed to cultivate a lasting resolution that meets the primary concerns of all parties. That safe space, or safe container, is one all participants — clients as well as lawyers and other professionals — trust and feel is fair. The absence of any threat of litigation is a critical factor in creating this sense of safety inside the Collaborative process. When the possibility of litigation lurks, even in the background, then people inevitably negotiate in the shadow of the law, meaning that the possibility of imaginative solutions based on the personal reference points of the parties is almost non-existent. Instead, negotiations focus on what might happen in court.
Collaborative Practice Creates a Safe Space to Talk
The participants’ confidence that the container is safe encourages imaginative, non-adversarial dialogue and stimulates conversation outside the legal paradigm. This safe space is created by the Collaborative contract (called a participation agreement) which holds participants to the Collaborative commitment and contains the disqualification language prohibiting the lawyers from going to court. The safe space is what allows participants in the Collaborative process to negotiate outside the shadow of the law if they should so choose.
Collaborative Practice is People-Oriented
Law school trains lawyers toward a rights-based orientation to conflict resolution. While there is nothing wrong with considering the rights and obligations created by our system of law, the training also shifts lawyers away from considering values that preserve interpersonal harmony, and away from maintaining relationships, attending to people’s feelings and needs, and preventing harm. Collaborative Practice differs from traditional lawyering in that it explicitly attaches importance to intrinsic characteristics such as interpersonal, emotional, psychological, and relational concerns. It elevates the importance of these values in the law and consciously trains lawyers to effectively deal with them. Without ignoring the rights and obligations created by our system of laws, Collaborative Practice creates an explicit place for intrinsic values as the bargaining table.
Collaborative Practice Aligns Financial Interests of Lawyers with their Clients
Collaborative Practice also is unique in that it aligns the financial interests of the lawyers and other professionals with those of the parties and incentivizes them to work toward creative solutions. This alignment of interests between clients and professionals, particularly lawyers, creates, “Unprecedented creativity and resolutionary energy in both attorneys and clients.” (Pauline Tesler). Outside of the Collaborative process, the incentive for attorneys to work toward settlement is much lower. In a traditional negotiation and in litigation, lawyers continue to charge fees whether or not the case settles. In fact, from the lawyer’s financial perspective, settlement may not be the best option.
Collaborative Divorce is More Than Settling “Collaboratively”
People who choose to use Collaborative Practice to work through the issues surrounding their divorce or other legal conflicts, have the opportunity not only to get through the conflict or negotiation to the other side but to take a big step toward healing the conflict as well. For all the above reasons, Collaborative Divorce offers much more guidance and support than settling the dispute in a more traditional negotiation.