The divorce process known as “collaborative divorce” is a variation on the concept of attorney-assisted mediation. Before I explain how the collaborative divorce process works, a few words about the genesis of this process will be helpful.
The concept of collaborative divorce is generally credited to Minneapolis family lawyer Stuart Web, who came up with the concept in the early 1990s. Today, it is estimated that there are over 20,000 attorneys in nearly every state and a number of foreign countries involved in the collaborative practice.
The appeal of the collaborative process stems from the fact that the traditional American system of justice is not particularly well equipped to deal with the emotional nature of a divorce case. Marital dissolution cases tend to be like square pegs trying to fit into the round hole of civil litigation. Although legal rules and trends have attempted to recognize the unique nature of divorce cases and the issues they bring to the court, the fact is that in our Anglo-American system of jurisprudence, there must be a defined outcome – a winner and loser – but that type of finality does not often arise in the break-up of a family. In divorce, the winners and losers are not so easily defined, and certainly where children are involved, there is no “finality,” in the classic sense of the word. It is these shortcomings of the traditional mediation/litigation system that make collaborative divorce an attractive alternative to many people.
The key concepts of collaborative divorce involve the mutual, free and voluntary exchange of information, and a climate of civility and respect for the individuals involved. Each party hires his or her own independent counsel to provide advice and representation, but the parties’ expressed intention is to negotiate a settlement that treats everyone fairly, not to litigate. In fact, the attorneys for the parties commit to exercise their best efforts to negotiate and finalize, in a civil, courteous and open fashion, a global settlement, and to withdraw from further representation and not take part in litigation should the collaborative process not be successful. The process can, and frequently does, involve the engagement of professionals who are neutral in their approach to the facts, to provide expertise and recommendations to the parties and their counsel on financial and non-financial issues, such as the division of parenting rights and responsibilities.
The collaborative process begins by putting these key concepts into writing, with the execution of a “Participation Agreement.” The participation agreement contains a general provision that all persons involved will treat each other with civility and courtesy, and more specific provisions for the free, voluntary and mutual exchange of information, so that everyone involved in the process will have complete knowledge and understanding of all salient facts. The agreement also formalizes the disqualification of the attorneys involved in the event of the failure of the collaborative process.
The participation agreement will also commonly provide that neither party will attempt to take advantage of mistakes by the other party or by counsel; again, the spirit and intent here is to serve the best interests of all involved and eliminate some of the “gotcha” moments prevalent in a contested, litigated divorce. Confidentiality is a hallmark of the collaborative process, and the parties agree not to disclose, or attempt to use in subsequent litigation, anything that is said or done during the process. From a legal standpoint, this confidentiality provision probably is not necessary, since the rules of evidence would likely bar any attempt to offer an admission made in settlement negotiations against a party’s interest, but the inclusion of this confidentiality provision serves two essential purposes. The first is to encourage the parties to speak freely and candidly, and the second is to achieve a result which will keep the parties’ personal and financial business out of the courtroom and away from the public eye. Ultimately, this serves the parties’ interests and keeps the children out of the line of fire, thereby minimizing the impact of the divorce process on the children.
As noted above, the participation agreement will also provide for the engagement and compensation of neutral professionals, such as accountants, tax and financial advisers and mental health professionals, who will advise the parties on matters relating to finance and parenting choices. Due to their role as neutral advisers, the “hired gun” mentality, which often is so costly to the parties in contested litigation, is eliminated. Presumably, the parties receive professional advice unfiltered and unfettered by the professional’s usual desire to serve his or her master by shading things to suit the best interests of the person paying his or her fee. The parties benefit from knowing they are receiving advice based upon the professional’s true feelings and analysis, and can, therefore, comfortably rely upon the professionals’ opinions.