TO LISTEN TO EPISODE 5, CLICK HERE.
Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason, and I am a divorce lawyer and mediator, and I’m also the creator of this podcast.
INTRO
Today, we are in Episode 5, and we’re going to be talking about a divorce process called collaborative law, which has, over the last couple of decades, really gained a lot of popularity.
Just to set the stage, by way of a quick summary of where we’ve been in previous episodes, we’ve talked about how the divorce process itself is a negotiation process and a very important one at that, and how there are different ways that you can structure the negotiation process that is your divorce.
In the last two episodes, we talked about two different process options that you can select if you’re going through a divorce process. One which is, I say “uncommon,” but in saying that I realize that, as a divorce attorney, I guess I wouldn’t know how many people are doing what I refer to as a DIY Divorce or a do-it-yourself divorce because they are not hiring me to help them with their DIY Divorce. That said, my sense is that for people who have the resources to hire a mediator or an attorney to help them with their divorce, it’s pretty uncommon.
Then, in the last episode, we talked about a process, which is very common, called mediation. I think most people out there are pretty familiar with it. It’s been around for a number of decades. I mean, I don’t know how long mediation has been around in the world, but as a divorce settlement process, it’s been used for quite some time.
Today, we will be talking about and delving into the divorce settlement process called collaborative law or collaborative divorce. As we did with DIY divorce process and divorce mediation, we will be looking at a number of different aspects and elements of the collaborative law process to help familiarize you with what to expect from the process, and also, in familiarizing you with what to expect from the process, to help you make the best decision possible for yourself and your family about what divorce process to pursue that will result in the best possible settlement for you going forward.
COLLABORATIVE DIVORCE: OVERVIEW
Let’s talk a little bit about what is collaborative law just as a very, sort of, broad overview. By way of introducing collaborative law, I will say that, at the very, very outset, the only way to resolve your divorce was really by going to court, and there were so many couples for whom that was not, at all, an appealing prospect and it really did not feel necessary. So, in response to that, mediation began to be relied on as an alternative process that was meant to be less polarizing, and more respectful of both parties, and led by a neutral rather than two advocates.
However, there was a subset of couples who knew that they did not want to go to court, but they also felt like mediation was either not a supportive enough process or not a strong enough container or structure for their divorce negotiation. If they felt that way, many of those couples were ending up because they did not have an alternative in the court system.
It was in Minnesota in the early 90s that the collaborative process was “invented,” so to speak, by an attorney who really saw that there was a gulf between these two very disparate options that people had, which were mediation or litigation, and came up with the collaborative process.
Let me explain what a collaborative process is, what it means.
In a collaborative divorce process, you and your spouse both hire attorneys, and each of the attorneys that you hire represents you individually. So, you go out and you hire a collaborative attorney, and they represent you, not both you and your spouse together. They’re not a neutral. They’re your sole advocate. Your spouse does the same thing.
You can’t have a collaborative process without two collaboratively trained attorneys, so your spouse would also go out and hire a collaborative attorney, and that attorney would represent your spouse. They would not be your attorney, as well.
Somewhat similar to the more traditional set up, both spouses will be represented by individual attorneys, but collaborative attorneys commit to never take your case to court. In essence, that’s a way of saying they will only assist you in reaching a settlement. So, that’s not true of a traditional attorney who will assist you, try to assist you, in reaching a settlement, but if a settlement cannot be reached, will certainly take your case to court and litigate on your behalf if they need to.
Collaborative attorneys commit at the very outset of the case, in the first meeting, through something called the collaborative participation agreement, that they will only work towards settlement for you. If you find that you hit a roadblock that you can’t work past, and you’re stuck, and you have to go court to resolve either your entire divorce or the remaining issues in your divorce, you would hire a different attorney to represent you in a litigation process. Your collaborative attorney would not continue representing you in that case.
In some ways, the collaborative process is similar to mediation in that it only continues so long as and until you are working toward or reach a settlement. Just as mediation does not incorporate an option to litigate with your mediator, collaborative law does not incorporate an option to litigate with your collaborative lawyer. So, it is purely a settlement process, completely voluntary.
COLLABORATIVE DIVORCE: WHO’S INVOLVED
Let’s talk through a couple of different elements of the process, starting out with who’s involved with the process.
As with every single one of these processes, you and your spouse are involved, of course. You’re the two most important people involved in the process, followed by your two collaborative attorneys.
The unique and cool thing about the collaborative process is that it is and was, from the very outset, envisioned as an interdisciplinary process. I think that, in some ways, it’s kind of strange that divorce is predominantly thought of as a legal process, because the issues that it addresses are more financial and/or parenting and interpersonal issues more so than legal issues. There are legal issues in a divorce for sure, but, at the end of the day, really what you’re talking about are your kids and your finances. Whether lawyers are best suited to help you with that is another discussion. But collaborative law, at the very outset, recognized that, wait a minute, where the financial issues that a couple is addressing as part of their divorce have complex future planning implications for them, complex tax implications for them, it can be really, really useful to have somebody in a neutral role as a financial expert on the collaborative case.
Similarly, if there are particular co-parenting issues that you and your spouse feel that you could use some assistance with, a divorce lawyer can tell you, anecdotally, what they know of what past clients have done. But, more from a perspective of child development and from a clinical perspective, you would want to rely on what the collaborative process calls a child specialist, so somebody who has some kind of clinical background – they’re a social worker, they’re a child-psychologist. They focus on kids, that’s their specialty, and they focus on working with divorcing parents.
Finally, there’s another role for someone that would be more of a divorce coach. That person tends to have less of a focus on the children. In fact, they may be involved in a case where the couple does not have children, but where the dynamic between the couple, between the two spouses, is particularly challenging in such a way that the dynamic itself makes the resolution of the legal, and financial, and parenting issues in the case particularly difficult. What collaborative practitioners have found is that, sometimes, more than anything, the couple or one of the spouses in the couple needs some support themselves just in navigating the divorce process, and working through their own stuff, so that they can show up and participate in the process in a way that is really productive and ultimately that serves them.
To summarize on the subject of who’s involved in the process: Obviously, you and your spouse, most importantly, and then, always, your two collaborative attorneys, and then, optionally, depending on what your needs are, and your comfort levels, and what would feel useful to you, you might involve a financial neutral, a child specialist, or a divorce coach.
Is that an exhaustive list? No, but I would say in 95% of collaborative cases, that covers who would be included. I don’t actually know statistics on how many collaborative cases involve just the attorneys, but that is very common as well, though the practice differs from state to state.
COLLABORATIVE DIVORCE: WHO TALKS TO WHOM
Once you’ve assembled what we refer to as the collaborative team – so, the two attorneys, plus whatever other professionals are needed – and you are in the midst of the negotiation process, who talks to whom?
In a collaborative process, first of all, the meetings are held in person, similar to mediation. Given that, it’s very common that the spouses talk to each other. They certainly talk to their own attorneys. The attorneys certainly talk to each other. But then, it’s not uncommon at all for spouse A to be talking to spouse B’s attorney and vice-versa.
The collaborative process, in that way, there’s less of a formal structure imposed on it that’s reminiscent of the traditional legal system. In a traditional case, the other attorney is not allowed to talk to you without your attorney’s permission. While that ethical constraint is recognized in collaborative law, it’s more accepted as a norm that the other attorney – in your attorney’s presence, by the way, not separately – would address you directly.
Let me just say quickly that if you are working with any of the three additional roles of professionals that I mentioned (the financial neutral, the child specialist, the divorce coach), it can work in a variety of ways.
So, take the financial neutral. They may, and may likely, have individual conversations with each of you and your spouse. They may have conversations with the two of you together. They will certainly have conversations with your attorneys. They may, but not necessarily, they may have conversations with other professionals on the team, like the child specialist and the divorce coach. Less frequently, I would say, is that the case.
The same goes for the child specialist. So, the child specialist would meet with you and your spouse together and, quite possibly, separately. With your permission, if it is appropriate based on your child or children’s age/s and your particular situation, they might meet with the children in a particular case, but not necessarily. Sometimes, they’re just working with the parents. Oftentimes, that’s together. Sometimes, it can be separately.
The divorce coach is interesting. It depends on whether or not the divorce coach is hired by one of you or both by parties. So, if the divorce coach is hired by both parties, they will likely meet with you together, and they may very well meet with you separately. If they’re hired by only one of you, they will be meeting with you individually, as needed. They may also, and this goes for a neutral divorce coach as well, they may also attend to joint meetings. Maybe for a meeting that addresses a particularly challenging topic, but not every meeting.
Because, as you may be… I have the visual of the dollar signs that’s just circling in your mind, like, “How many professionals am I paying for in a collaborative case?” The goal in the collaborative case is to not at all to run up fees, and the professionals are mindful of not having every professional in every meeting whether or not it’s going to be useful. So, that’s also part of the conversation that will happen in your collaborative meetings. Number one, who, if any, are the other professionals outside of our attorneys that we would like to involve in this case? Then, from meeting to meeting, who should be present at that meeting? Do we need them there? Will it be more efficient to have them present in the meeting or not?
COLLABORATIVE DIVORCE: WHERE THINGS TAKES PLACE
In terms of where things take place in a collaborative case, if you just have you and your spouse, and two attorneys, it’s most common to alternate between the attorneys’ offices. If you have a financial neutral, a neutral divorce coach, a neutral child specialist, sometimes you’ll meet in their office space as a neutral space, but more often than not, you’re just alternating between the two attorneys’ offices.
COLLABORATIVE DIVORCE: WHAT HAPPENS WHEN YOU AGREE
So, you go through your collaborative process, your in-person meetings, you talk through the issues, and you come to agreements. What happens then and how does drafting work in a collaborative case?
It’s very common in a collaborative case that when the meetings, the in-person meetings, conclude because you believe and hope that you’ve worked through all the topics you have to discuss, it’s very common that you would draft a summary, summary of the terms or term sheet, or memorandum of understanding. It’s not necessary, but – and again, it’s really a personal preference in terms of how your attorneys practice. Many attorneys would just go straight to drafting at that point – but it’s my own practice to draft a short term sheet summarizing what I and my collaborative counterpart understand our clients to have agreed to. That would be something that I, for instance, if I drafted it first, I would share with my collaborative counterpart, get his or her feedback, revise, and then we would send out a copy to our clients that was the joint copy, that was our shared understanding.
That’s something that’s, you might say, is a little bit unique about the collaborative process as opposed to a more traditional approach. The attorneys, while they’re not co-mediators – and that’s an important distinction because a mediator, fundamentally, is neutral and your collaborative attorneys are not neutral – however, they sometimes work as a team like co-mediators, while maintaining their own role as advocate for you and for your spouse. So, when it comes time to do things like draft a term sheet, draft the contract, the attorneys will be collaborating between themselves and coming to agreements between themselves, typically, before they share a work product with you and your spouse. That’s, basically, how that works.
So, usually, if there is a term sheet, you review it, you revise it as needed, and then you draft a contract based off of it. And one or the other of the collaborative attorneys will take the lead on that. As I mentioned in the last episode around drafting, even when the spirit of the case is very collaborative, two attorneys are not going to sit together at the same time and draft. So, one person has to take the lead on it, and that will be a decision that is jointly made. Then, the other attorney will be reviewing and revising. It’s very common that there are multiple revisions to a draft before it’s finalized.
COLLABORATIVE DIVORCE: LEVEL OF ATTORNEY INVOLVEMENT
Another way to distinguish these different processes from each other is by looking at the level of attorney involvement in the process and the likelihood that you’ll be spending any time in court in the process.
With regard to the level of attorney involvement in a collaborative process, it’s high. Most people who end up in a collaborative process are there because they feel that they do need the support of and the participation of an attorney for each of them to make the process feel effective.
Actually, I should amend that to say that, sometimes, one party feels that that’s totally unnecessary, and they’d rather be in mediation, and the other spouse feels like mediation is out of the question for them, and they definitely need an attorney in the room with them. So, it may not be both people, it might just be one. And that’s all it takes because you have to both be comfortable with the process for it to work. If one person has doubts about mediation, it’s very common that the couple would end up in a collaborative process.
And the level of attorney involvement is on the high side. Do the number of attorney hours in a collaborative case approach the number of attorney hours in litigation? Unlikely. But it’s an attorney-led process. That’s something to keep in mind, to distinguish it from mediation, which is a process that’s really led by a neutral with supporting roles for attorneys, optionally, in the wings.
COLLABORATIVE DIVORCE: LIKELIHOOD OF TIME IN COURT
Then, in terms of likelihood of time in court, it’s very low in a collaborative process. It really should only happen in a collaborative process if you and your spouse do not find that you’re able to come to agreements on all of the issues that you’re discussing.
So, similar to mediation, a collaborative process that goes all the way to completion, to resolution, would not involve you needing to go to court. You have attorneys that would do the drafting of the contract for you and who would do the filing of your divorce papers for you with the court system. So, likelihood of time in court very low in a collaborative process.
COLLABORATIVE DIVORCE: PROS + CONS
Let’s talk a little bit about the pros and cons of choosing the collaborative process.
For me, one of the most attractive and positive elements of the collaborative divorce process is that it is solely focused on settlement. We talked a couple of episodes ago about how the overwhelming majority of divorce cases settle by agreement of you and your spouse, of the parties. They do not settle by a judge making a decision. So, if you know that you are going to end up with a settlement – just overwhelmingly statistically likely to – to my mind, it makes a lot of sense to participate in a process, if you can, that is solely focused on settlement as opposed to (and we’ll talk about this more when we talk about litigation) a process that is focused on settlement, in so far as settlement seems viable, but also, by necessity, is participating in the litigation process, which involves many time-intensive steps in preparation for an ultimate trial that is quite unlikely to happen.
There are positive elements to being in a litigation process, as well, and I will talk about those when we talk more in depth about litigation, but I think one of the great, great attributes of collaborative is the explicit commitment, and it’s a contractual commitment, at the outset of the case, by the attorneys, to work only towards settlement. They will not litigate the case. They will only help you settle it.
I think that’s excellent. As an attorney, it really helps focus your efforts and really helps, I don’t know if “incentivize” is the right word, but it really leads you to invest your time wisely and productively in the construction of the most creative and globally beneficial settlement possible, as opposed to having to siphon off hours, and energy, and attention toward preparing for a more formal legal battle while, at the same time, trying to fashion a settlement. So, I think, that’s a huge pro of the collaborative process.
Another huge pro, for couples for whom this is useful, is that it does bring a lot more legal support to the negotiation than you get in a mediation process. Think about yourself in a room talking through financial topics, child-related topics, if relevant, with your spouse and just one neutral person. I’m not saying, “Do you look forward to that?” Because, no, probably not. But can you imagine it? Can you imagine yourself getting through a session feeling comfortable, or would you feel totally at sea in the process?
If the latter, then the extra support and accompaniment that is provided by the presence, in all of your meetings, of at least two attorneys – well, never more than two attorneys, but I mean at least two attorneys and maybe other people – can really be useful for you, if you feel that the thought of being in the room with a neutral mediator just wouldn’t cut it, would not address your needs.
The final thing I’ll say that I think is really a cool element of the collaborative process, where it is useful, is the interdisciplinary component. More so than any of the process options that I will talk about in this, and past, and future episodes, the collaborative process is really founded on the principle that divorce is not primarily a legal process. It’s a process that hits on many different disciplines, including financial, emotional/clinical and psychological, and our approach to divorce should reflect that. We shouldn’t try to fit a square peg into a round hole or, I don’t know what the best analogy is, honestly, but take this complex process and just shove it through a legal framework only.
I think there’s some real humility in the foundation of the collaborative movement in that, as it was developed by attorneys, and that it’s attorneys saying, “You know, it’s not really we who have the key to divorce. There are so many multilayered issues, and we really want to look to our colleagues in different disciplines for expertise with the goal of best serving our clients.” I think that’s a huge pro of the collaborative process.
That’s not to say that you can’t incorporate those other professionals in a mediation process, or even a settlement negotiation process, though in the latter it would be less common. But collaborative just comes from that spirit right from the get-go, that this is about more than just legal issues.
Some of the downsides of the collaborative process. It tends to be a more expensive process. Is it as expensive as litigation? Almost never. Is it as expensive as a settlement negotiation process? Easily. Definitely. It can be more expensive if you choose to incorporate a lot of additional professionals. It’s certainly more expensive than a mediation process. Again, there are exceptions to this, I’m talking in generalities, but generally speaking, collaborative is, you know, you’re paying for two, at a minimum, two professionals to lead your negotiation process as opposed to paying one neutral professional.
I do think, going along with that, there is… I don’t know if it’s a con, but just to recognize the limitation of having your negotiation led by two attorney advocates. For as much as collaborative attorneys are trained to support you and your spouse in working towards settlement, the feel in a collaborative room can be slightly more polarized than mediation. More collaborative and settlement-focused in general than a more traditional settlement negotiation or litigation. There’s just a stronger presence of attorneys, and I think sometimes it’s like a double-edged sword.
It can be really positive, it can bring a lot to the table, but it can also lead the process in a more legal and positional decision. That’s never the intention of a collaborative attorney, but I think, despite ourselves and despite our best efforts, when you act as an advocate (there are studies done on this), you are blind to your own bias. So, your attorney thinks that one solution is really middle-of-the-road and fair and your spouse’s attorney thinks that it’s something that’s really out in left field and something else is middle-of-the-road and fair. That’s less common in settlement negotiations when you’re working with a neutral.
So, that’s one downside, but also the presence of attorneys, I think, is also very useful. For those couples who do not feel comfortable going through mediation, collaborative is a fantastic option because it allows you to stay out of court while still having that added, that enhanced, support of attorneys present who are working with both of you.
Similar to mediation, collaborative is a totally voluntary process. So, again, double edged sword. That’s great because neither your or your spouse’s collaborative attorney nor your spouse can obligate you to agree to anything you don’t want to agree to, can take the case in a direction that you’re not comfortable with. However, that cuts both ways.
So, if your spouse is really digging in their heels and they’re dragging their feet, not moving things along in a productive way, being really intransigent, there’s not a lot of recourse that you have in a collaborative process.
I don’t think this is likely, but if your spouse’s attorney has a really off understanding of the law, and your spouse is getting that information, there’s not a way to correct that in the same way that there is if you were in court and the judge or the judge’s attorney said, “What? No, that’s not how we would handle this case. We would do…blah, blah, blah.” So, I think that can be a downside, depending on the dynamics of your case.
Similar to a mediator, your collaborative lawyers cannot force either of you to share certain documentation. If one person is inclined to be not totally transparent, or even deceptive, if that’s really a problem, collaborative may not be the best forum for you.
At the same time, having been a litigator myself, litigation does not offer any silver bullets for spouses who are dealing with another spouse, an ex, who’s deceptive and willing to not be fully transparent in the process. You can legally obligate, through the litigation process, you can legally obligate either or both parties to share certain documentation. But it’s not like the court pulls back the curtain on your spouse’s bank accounts or reaches in to their safety deposit box and shows you what’s in there. They still have to comply. If someone’s willing to be dishonest, that’s likely going to be true whether you’re in litigation or collaborative.
That being said, personally, I would not want to practice in a collaborative case where one of the spouses was not willing to be transparent or honest. In fact, the collaborative participation agreement that’s signed at the outset of a collaborative case speaks to this. It’s one of the requirements to participate in a collaborative process. That agreement is signed not just by you and your spouse, but by the collaborative attorneys and anybody else in the collaborative team.
It speaks to the requirement to be transparent, to participate in good faith, and it goes above and beyond the onus on you, if you’re in a litigated case in court, and obligates you to, and you commit to, share any relevant information, relevant to the resolution of your case, that is, that you are aware of, fully and transparently, without being asked for it.
You don’t have to wait for your spouse to ask you about this new job offer you’ve got for double your current salary. If you’re talking about financial support, that’s relevant, and in a collaborative process, you need to share that. You can also share if the offer is not certain, and you just had a good interview, or you haven’t received an offer letter, whatever. You can caveat it. But, being able to rely on your spouse’s commitment to transparency and having a commitment to that yourself is a critical part of the collaborative process.
I say this all in the context of pros and cons of collaborative. I do think that if you have some real transparency and disclosure issues, or issues around deception and not sharing information in good faith, that going the more traditional route, where you can fall back on the coercive of power of the court to order different things, though not perfect, may be more appropriate for you, if transparent sharing of information is an issue that you’re struggling with in your case.
WHO IS COLLABORATIVE DIVORCE RIGHT FOR?
Similar to mediation, I would also say that you want to definitely feel comfortable, minimum level of comfort, in the room with your spouse.
If you are fearful of your spouse, or you’re fearful of saying things to anger them or ever disagreeing with them, have a consultation with an attorney before you commit to a collaborative process and talk that through. It may be the case that if you are supported in the room, present with your advocate, you will feel comfortable disagreeing with your spouse, and speaking your mind, and standing up for what’s important to you. If that’s not the case, however, a process in which you’re not meeting in person with your spouse could be more effective for you. So, that’s something to consider in terms of thinking about who’s collaborative a good fit for.
I would also say that, similar to mediation, you need to be not only able to disagree with your spouse, which I just spoke to, but you need to be open to agreeing. Being open to agreeing involves being open to compromising. You want to do a reality check with yourself about that. If that’s something that you’re not particularly open to at this point in time, that’s okay, but a collaborative process may not be effective for you. So it may not make sense to invest the money in a process that is not inexpensive. You may be better served fighting for what you want and what you believe in, if you feel unwilling to compromise on it, in court and see if you can get it.
A word of warning that, as I was saying before, we all are somewhat biased in our own self-interest and somewhat overestimate the strength of our own legal case and overestimate the weaknesses of the other person’s, as we see things through this biased lens. So, you want to really be careful to try to get a reality check from somebody if you are considering going to court and litigating an issue. I think it can be useful to try to get one neutral matrimonial attorney, maybe whom you both retain or maybe whom you share your fact pattern with, who’s not retained as your advocate, to give you their honest feedback on the strengths and weaknesses of both sides of whatever you and your spouse are disagreeing on.
NEXT UP
With that, we will stop for today. This episode has been our summary of the collaborative law process. In the next episode, we’re going to be talking about settlement negotiation, which in many ways can look similar to a collaborative law process and, time-permitting, we will talk about litigation, but we may have to kick that on to Episode 7. So, next episode will be Episode 6 on settlement negotiation, and maybe on litigation, as well. I will look forward to speaking with you then.