By Adam J. Berner, Esq., MA | March 19, 2020
Collaborative divorce, by definition, sounds like a contradiction. Yet, the collaborative divorce process is the answer to many divorcing couple’s attempt to work out their divorce in the best way possible for their family. How does it work?
In brief: Collaborative divorce synthesizes the best that mediation offers while providing each side with their own lawyer who is advocating and focused on the needs and concerns of his/her individual client while also concerned for the needs and concern of the other.
Similar to Mediation
On one hand, the collaborative divorce process is similar to the mediation process. Couples work together to figure out their divorce settlement in a problem solving way, instead of against each other in a destructive way. Topic by topic, meeting by meeting, the neutral mediator helps couples make informed decisions, informed of the law and informed as to what is important for each person (and other family members). But in contrast to collaborative law, couples in mediation typically sit down together with only one other person, the neutral mediator.
But Each Side Has
Their Own Attorney
On the other hand, collaborative divorce has some similarity to the traditional attorney-attorney negotiation in that each side has their own attorney. While many (if not most couples) can be entirely successful in mediation, some couples need additional support, or feel that they do. Divorce is a scary time, the fears of the known and unknown are deep, and the vulnerability that each person experiences is pronounced. Having someone by your side can be very helpful during this time. Further, in cases where there is emotional volatility, discrepancy of financial sophistication, or just for reasons of personal preference, having a constructive advocate by your side (actually or figuratively) to provide more hands on guidance, support and hand holding can help individuals feel safer, more comfortable and supported in the difficult process of divorce.
Goals of Collaborative Lawyers
What is different between the collaborative lawyer and the traditional adversarial lawyer, and this is a major difference, is how the collaborative lawyer represents their clients. Traditional adversarial divorce attorneys are focused on “zealous advocacy,” the way many lawyers were trained in law school in how to define success, which is getting the best deal for your own client and the worst outcome for the opposing client. In contrast, collaborative family lawyers do not define success this adversarial win-lose way. Instead, success is defined in finding solutions that address the needs and concerns of all family members as much as possible. We call this “constructive advocacy.”
Commitment not to go to Court
To support this “constructive” as opposed to destructive advocacy, the hallmark of collaborative lawyers is the commitment not to go to court. Yes, that is right. What sounds like blasphemy to the traditional lawyer, collaborative lawyers sign a participation agreement that they will not be going to court. In the rare occasion of a client needing to have a court determine the outcome for his/her family (which happens is less than 1% of all divorces in New Jersey), then the client will be guided to find a litigation attorney. But, as opposed to starting the divorce negotiation in the shadow of the courthouse, gearing up for litigating a trial that statistically will not happen, the collaborative process starts from the premise that a deal will be reached and creates an environment to maximize the success of an optimal settlement - for all concerned parties.
Commitment to a Full Sharing Of All Relevant Information
One very frustrating aspect of the traditional adversarial divorce is the amount of time and money it takes to obtain information from the other side. While the court does require financial disclosure, there are games that can be played and the formal mechanisms to get such information to satisfy lawyers, such as interrogatories, depositions and forensic investigations, are often the most expensive and time consuming elements of the divorce. In contrast, collaborative divorce requires honesty, integrity and full disclosure of all relevant information to help both sides make an informed agreement. This requirement is not just on the parties, but also on the professionals who specifically commit to the affirmative responsibility to ensure not just that all information be shared, but that neither side takes advantage of a miscalculation or inadvertent mistake. The collaborative commitment is to provide both sides with all information available to enable the parties to make a fully informed decision, without having to chase the other side to obtain information and supporting documents.
The Best Collaborative Divorce Is a Team Effort
When thinking about divorce, we often equate it with the legal process, divorce court and divorce lawyers. But divorce, is obviously much more than a legal process. Divorce is a multi-dimensional transition which impacts not just the law, but also the family’s finances, emotions and parenting. It is for that reason that in a collaborative divorce, divorcing spouses have at their disposal, and are best served by, other professionals who bring expertise and assistance to the family beyond the lawyers.
Mental health professionals who serve as “divorce coaches” help moderate the challenging emotions that divorcing spouses are going through to avoid such emotions getting in the way of a productive settlement process.
Child specialists can be brought in to provide expertise in giving feedback on the children’s best interest to optimize parents’ decision making.
Financial professionals serve as neutrals to cost effectively analyze financial information, such as income, cash flow needs and projections, tax analysis and business valuations. These professionals, all trained in mediation and the collaborative divorce process, serve as agreed upon neutrals and not as hired guns which all too often exacerbate the adversarial divorce. Rather, these trained professionals, along with the collaborative lawyers, work as a team to help support and transition the family during the difficult divorce process to optimize the outcomes for all family members.
Collaborative Divorce? A Contradiction?
No! Collaborative divorce is a paradigm shift in how couples can get divorced. It is my hope that through a better understanding of this process, those that unfortunately need to go through the divorce process are better informed of this valuable alternative in how to divorce in a way that addresses the needs and concerns of all family members, as much as possible.
For more information about collaborative divorce, including a case study presented by attorneys, go to www.mediationoffices.com to download a free booklet on “Collaborative Divorce: Coming Apart, Together.”
Adam Berner specializes in mediation and collaborative family law, is the founder of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the family dispute resolution field for the past 25 years having served as President of the Family & Divorce Mediation Council of NY and Founding President of the NJ Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law where he teaches mediation and collaborative law. Additional information can be found at www.MediationOffices.com.