I wish the answer was simple, but it’s not. You would almost have to go through it to fully understand it, but that’s not very helpful either.
Perhaps the best way to answer the question is by comparing it to the traditional divorce model. In that system, one party files a petition for dissolution of marriage that then gets served on the other spouse, usually by sheriff’s deputy or perhaps certified mail. There may be temporary matters that are handled through a court hearing: custody and parenting time for the kids, child support, spousal support, someone moving out of the house, and the like.
If there are lawyers on both sides, they engage in the discovery process (formally or informally) to determine what property exists, what it’s worth, and what debts there are. They then try to negotiate a settlement that the parties can live with. If they can’t reach an agreement, the parties go to trial, present evidence, undergo cross examination, and let the judge make the decision. If a party is unhappy, he or she can appeal.
If there is one thing that characterizes the traditional divorce model it’s this: If we can’t get an agreement, we’ll let the court decide. This option–being able to go to court–means parties can be unreasonable. “I’ll take my chances with the judge,” is a line familiar to many divorce attorneys, and it often follows a rejection of someone’s proposal.
Another main characteristic of the traditional divorce model is that it involves the parties and their lawyers, along with the judge. Mental health counselors become involved either as court-ordered counseling takes place or when the counselors have to do custody evaluations. Financial professionals become involved when a business has to be valued.
In a nutshell, even an amicable divorce can be like Kramer v. Kramer. It’s one spouse versus the other. Cooperation and working together is the exception to the rule.
Collaborative law turns the entire process upside down as well as inside out. It may seem strange, but that’s only because we’re used to thinking of divorces as “me vs. you” cases. If we think about what’s really going on in a divorce, the collaborative model makes a lot more sense.
In a collaborative divorce, the parties take the court option out of the picture. Both sides agree at the start that they will not go to court for anything other than to file the final settlement agreement. Most of the work is accomplished through four-way meetings with the parties and their attorneys. Unlike four-way meetings in a traditional case, however, a collaborative four-way meeting has the parties doing most of the talking and the lawyers listening. The goal of collaborative law is to have the parties decide what is important to them in the case: making sure the children are taken care of, making sure that the parents can get along after the case is over, not having resentment between the parties after the divorce is final. Early on, the lawyers listen to the parties identify what their real interests are (”I want the children to be able to stay in the home they know.”) rather than simply their positions (”I want the house.”).
Once the real interests are identified, every decision the parties need to make is looked at through those lenses. For example, does a particular item help the parties achieve their goals, or does it push them further from those goals? The lawyers are not involved to argue on behalf of the clients, but rather they are there to help the clients take care of the things that need to be taken care of (”What about all those frequent flyer miles–how should we divide those up?”) and to provide ideas for ways to resolve a specific issue.
The collaborative process also brings in other professionals when it would be helpful. Often times, there may be a counselor or “divorce coach” to help the parties resolve underlying emotional challenges. A financial planner may be brought in to help one or both spouses figure out how to make ends meet in a way that fosters their goals. This team helps the parties transition from being married to being single again on many different levels. There’s no “me vs. you” in a collaborative law case. It’s more of a “we’re in this thing together, and we need to get out of it together” approach.
What seems to make this model really work is taking the courts away as an option. At the beginning, the parties and their attorneys sign a contract that says first, we won’t go to court. It also says that if someone decides to throw out that commitment and go to court, both attorneys have to withdraw from the case. The other thing that makes this system work is that the lawyers focus on the clients’ interests as identified by the clients–not what the lawyer thinks the client needs.
Collaborative law is more than what many of us attorneys already do. Many of us are cooperative and help clients get things done without any court involvement. But collaborative law takes the process to an entirely different level. Any and all conflict goes out the window–conflict doesn’t help the parties who are already hurting. The pain and difficulty of the situation is recognized and respected. In some cases, the parties even do a sort of “closing ceremony” at the end.
I know, at first I thought that was going over the top, but as I think more about it, people find comfort in certain rituals, even sad ones. A funeral is a ritual to help people grieve the loss of a loved one. In the case of a divorce, a person has not died, but the relationship has. A closing ritual can help the parties close the chapter on that part of their lives and avoid conflict later on. I’ll have more about the need for a “healthy goodbye” in another post.
Collaborative law is not for everyone. If one spouse is bound and determined to destroy the relationship, collaborative law will not help. Likewise, if the opposing attorney is, as we say, a real savage, he or she will have to really work hard to re-train the mind.
If you talk to divorced parties, many of them probably regret that there is some bitterness between them or that they cannot be in the same room together at a child’s high school graduation. Collaborative law offers parties the option of obtaining a divorce and moving forward with their self-esteem intact and ready to begin the next part of their lives.
SOURCE: Indiana Family Law Blog