Divorce Without Court. Collaborative practice is a negotiation process that occurs outside of court, but is specifically structured to ensure respectful and efficient meetings between the two spouses. The focus and objective of collaborative practice is to produce solutions that meet each parties’ needs, and those of their children, if any, within a safe and confidential setting.
While most divorce processes address only the legal and financial separation between the parties, many times the spouses have already taken care of the emotional element of the dissolution of their marriage. If not, however, the collaborative process enables a couple to end their marriage legally, financially, and emotionally, without sacrificing those relationships that they value most, as so often happens in court.
Collaborative Practice is based on three primary principles: the spouses’ pledge not to go to court (i.e. to war); their pledge to an open and transparent, but private and confidential exchange of information; and solutions customized by the parties to account for the highest priorities of the adults, their children, and any other interested parties.
The collaborative process enables a couple to end their marriage legally, financially, and emotionally, without sacrificing those relationships that they
[expand title=”CONTINUE READING…”]In Collaborative Practice, the parties each retain a lawyer, as well as a team of other professionals who are neutral, usually a financial professional, at least one mental health professional, and sometimes a child specialist. All Collaborative Practice team members, including the parties’ lawyers, should be specially-trained in the collaborative paradigm, although a team may agree to the parties’ choice of a professional who has not yet been trained collaboratively, if they believe that they can collaborate with the parties’ nominee and that s/he will contribute to a successful collaboration.
Collaborative Practice consists of a series of meetings, between each spouse and each neutral professional, between each spouse and his or her attorney, sometimes between both spouses and each neutral professional, and almost always of the full team, referring to all of the professionals, neutrals, lawyers, and both spouses. These meetings are intended to be non-confrontational, and to focus on the shared primary goal of finding acceptable resolution between the spouses. Like the neutral team members, collaborative lawyers are trained to work with one another and the clients to manage communications, to ensure that each client is heard, and to explore each issue and possible solution fully. Collaborative Practice does not rely on court-imposed resolutions but instead permits the parties to negotiate in a safe and structured atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of the restructured family.
Collaborative professionals understand the difference between a position and an interest. Taking a position is the same as insisting on a specific outcome. That’s the “line in the sand.” Alternatively, negotiating interests is about being open to different outcomes that can meet that underlying interest. Interest based negotiations help divorcing spouses to identify their goals, as opposed to the single option that would traditionally be set forth in a settlement offer. By having each spouse define his or her goals, the team can begin to generate multiple settlement options that could accomplish the goal. This helps divorcing spouses see that there isn’t just one way to settle, and it gives everyone more bargaining room. Collaborative lawyers encourage their clients to discover, identify, and then articulate their interests, rather than to take positions. The neutral professionals on the collaborative team also work with the clients to accomplish this by having the clients define their goals early in the process. This process opens up options and often clears a path to an outcome that can meet both parties’ individual goals.
The critical element of the collaborative process that distinguishes it from any other is that the collaborative attorneys will withdraw and the spouses must retain separate trial attorneys if any adversarial proceedings ensue. This assures that everyone involved in the process is committed solely to the collaboration and its goals; no one splits his or her attention between collaborating and preparing for possible litigation in the event that the Collaborative Process is terminated.
While parties may be more comfortable with the idea that they will not lose their attorneys if they cannot reach a settlement, the fact that the parties involved in processes other than Collaborative Practice can easily choose litigation over settlement means that reaching a settlement is less likely than in the collaborative model.
The lawyer’s sole job in the collaborative model is to help the clients satisfy their interests and settle their divorce. If she fails in that task and the collaboration terminates, then she loses her job.
I truly believe that Collaborative Practice is the best process for the vast majority of families involved in family conflicts. The attorneys in this firm have been collaboratively trained and continue to hone their skills by being involved in the Next Generation Divorce practice group and by attending continuing education seminars about Collaborative Practice. For more information about Collaborative Law in Tampa and dispute resolution process, you can visit: www.collaborativepractice.com and www.nextgenerationdivorce.com. Or, contact me.
WHY A COLLABORATIVE DIVORCE?
Why is a collaborative divorce better than a traditional divorce?
1 – A collaborative divorce is confidential. In the collaborative process, both the personal financial information and the private family problems (addictions, domestic violence, affairs, and mental health issues) can generally be protected from public scrutiny. The same is just not true in the traditional setting, where the law usually requires that the financial information be published in the court file, and the litigation context ensures that the private family disputes be published in order for one party to obtain an advantage over the other.
2 – A collaborative divorce is less expensive. How much does a traditional, courtroom divorce cost? There’s no easy answer to that question. Going all the way to trial can cost $100,000! The short answer is that it can cost as much as you want, but it cannot cost as little as you want, because it’s not soley in one party’s control. There are always two parties involved, as well as the judge!
And what about a collaborative divorce? Well, it has to be less, just by its very nature. There’s none of that Perry Mason stuff! No discovery; no motions; no battle of the experts; no trial….
3 – A collaborative divorce is less stressful. Any divorce is difficult. But collaborative divorce is the kinder, gentler divorce.
4 – A collaborative divorce belongs to the parties, not to the judge. Scheduling is easier. The results are personally tailored. The parties can do what judges cannot. In Florida, for example, the parties can agree to pay for their kids’ college; a judge could not order that.
For all of these reasons, many people in the know are now asking their lawyers if they’ve been trained in the collaborative process. And, if they have not, those people are looking for a divorce attorney who HAS. For more about the collaborative process, go to collaborativepractice.com
COLLABORATIVE DIVORCE… BECAUSE IT’S NOT JUST ABOUT YOU!
“Statistics show that, in the U.S., 50% percent of first marriages, 67% of second, and 73% of third marriages end in divorce.” Read the article here.
This is the old saw, but are these alarming numbers really accurate?
All argument aside, there is no question that divorce is rampant in today’s society. What many people don’t appreciate, at least until they are in the middle of it, is that the divorce process affects everyone… not just the parties, not just their kids (although it certainly affects them!), but also the parties’ employers, their kids’ grandparents, their neighbors, their children’s teachers… it affects everyone connected with the divorcing couple and their children.
And a traditional divorce, in which one spouses SUES the other spouse for divorce, is just war from the get-go! No one learns anything when they go to court in the old-fashioned divorce process!
So what other choice do we have?
Although all paths must end with a final judgment issued by a court dissolving the marriage, there are many ways to get to that result. One of those choices has only recently come into play; this is a method known as “the collaborative process” or “the collaborative divorce.”
The collaborative process takes place over a series of meetings: 1) between each client and their neutral collaborative professionals; 2) between each client and his or her collaborative lawyer; and 3) of the full team of clients and professionals.
No judge; no court. This is the heart of the collaborative divorce: if the parties give up on the process, if they throw in the towel and decide to file in court, their lawyers are off the case.
Let me say that again: if they want to go to court, the clients MUST retain new lawyers. Thus, the collaborative lawyers are completely focused on helping the parties reach agreement; they are not distracted by the need to gird themselves for battle.
No lawyers “stirring the pot” or “churning the case.”
A collaborative divorce teaches folks who engage in it to problem solve. It arms them with skills to work through problems in their future relationship with each other, as well as with others, and will better the society we all have to live in! You choose collaborative divorce because it’s not just about YOU!
THE COLLABORATIVE PROBLEM SOLVING ROAD MAP
The collaborative team guides the clients to work together to solve their problems. To attack any problem efficiently, they must follow these steps:
Step 1: Establish the ground rules. They are:
• Be polite, patient, and honest.
• Listen actively without interrupting the speaker.
• Focus on the future and avoid unnecessary discussions of the past. Focus on resolving conflict and avoid assessing blame.
• Speak only for yourself, using “I” instead of “You” sentences. “You” statements place blame on the other party and do not allow the statement-maker to admit to any culpability. The other person will resent the speaker for those statements; thus they hinder negotiations. Alternatively, using “I” statements opens the discussion for exploration, creativity, and change in response to the situation. “I” statements allow for a review of an individual’s own responses to the situation that exists.
[expand title=”CONTINUE READING…”]Step 2: Identify and prioritize your interests and concerns.
Understanding the difference between a position and a goal or interest is an important step in effective problem-solving. Focusing on positions, rather than on interests, limits settlement options, and sometimes results in agreements that fail to satisfy the participants’ actual interests.
In the collaborative process, the professional team works to focus the two people on achieving their goals, rather than on demanding satisfaction of their positions. This enables each one to identify and to define his or her goals. Then the team helps generate multiple settlement options to accomplish them. Identifying goals expands bargaining room and helps spouses understand that there is more than one way to resolve the issues of their divorce. Once identified, they can prioritize their most important goals, which then allows them to comfortably consider compromising on their less important objectives.
In addition, clear identification of big-picture goals at the outset helps them see that they share many common interests and concerns, which will play an important role in achieving the best possible outcome.
Step 3: Address any temporary issues either you or your spouse may have.
Certain temporary concerns must be tackled first because participants will not be able to effectively negotiate if they are fixated on urgent issues that they feel must be addressed now. It’s difficult to focus on a permanent timesharing schedule when you don’t know how you are going to pay your late electrical bill.
Step 4: Gather and exchange your information.
Before you can reach a full settlement agreement, collect all of the necessary information. Initially in the collaborative process, clients exchange financial and other important material so that, when they come to the table to negotiate, they are fully aware and prepared for those discussions.
Step 5: Brainstorm your options.
Brainstorming provides an open environment in which the entire team participates. The parties should feel as though their thoughts and opinions are being heard. The team will listen actively when brainstorming, but the process will have a relaxed and casual feel.
Brainstorming should be fast-paced so that participants don’t have time to self-evaluate or to arrive at preconceptions about options. No idea is a bad idea. Each person at the table should be encouraged to think outside the box and discouraged from criticizing each other’s ideas. Even ridiculous suggestions are acceptable because they may lead to other helpful ideas.
Additionally, the team will avoid rewarding ideas because participants may focus on those suggestions and close their minds to alternatives. Judgment and analysis at this stage stunts contributions and limits creativity. By exploring as many proposals as possible, participants gain the best chance of reaching a settlement that addresses their most important interests. For more on brainstorming, see infra.
Step 6: Evaluate your options.
After thorough brainstorming, the team members will weigh, tweak, and trade options as they work to reach a final settlement. This is when the team, or perhaps an individual lawyer, will discuss the ideas of BATNA (the best alternative to a negotiated agreement) and WATNA (the worst alternative to a negotiated agreement). At this point, the clients will evaluate how well their interests can be met by the proposed solutions. The team will discuss the cost and benefit of each proposal to each spouse. The team will ask each client to step into the other client’s shoes and analyze whether s/he would be happy with the proposal if s/he was on the opposing side.
Step 7: Select your best available options.
After creatively brainstorming and evaluating the clients’ options, it is time for them to decide. No one forces a decision. It is their process, and, ultimately, they are the ones who have to deal with the decisions that they
BEGINNING A COLLABORATIVE DIVORCE
The First Full Team Meeting
The first team meeting begins with the facilitator reviewing the clients’ goals. The facilitator and other team members will refer to these often throughout the process, reminding the clients of them and anchoring the clients to them, when necessary. Next, the facilitator reviews the protocols of conduct with the clients.
[expand title=”CONTINUE READING…”]During the first meeting, the professionals review the collaborative participation agreement with the clients, and include a discussion of confidentiality, transparency, and the disqualification clauses. Some teams read the entire agreement to the clients. But many teams opt to forego the full reading, accomplishing that task prior to the meeting, and instead, summarize each section to the clients in a conversational format, checking often as to whether the clients understand and agree. The entire team then executes the agreement.
Once the participation agreement is signed, the team proceeds with the rest of the agenda. It is often appropriate to next discuss the valuation date for the assets and liabilities.
Early in this process, the team also addresses payment of the professionals’ fees and court costs. It is likely that those fees and costs will be paid using marital funds on a monthly basis and some kind of protocol should be set in place early to ensure that this doesn’t become a source of regular, irritating discussion.
The attorneys then identify issues, gather relevant information, explore various options, and guide the clients. This also includes a discussion of the clients’ immediate concerns, especially if temporary issues must be addressed.
It will also probably be a good time for the clients to schedule appointments with the financial professional to begin working on their financial discovery prior to next joint meeting. The financial professional helps the clients prepare their sworn financial affidavits to identify marital and non-marital assets and to identify budgeting issues, among other things.
Throughout the meeting, the clients may be given homework to provide relevant information before the next full-team meeting. These tasks must be accomplished within a certain timeframe, often before the next meeting. Timely completion reduces the cost to the clients of the process and keeps it flowing forward. Typical homework assignments include compilation of financial discovery, appraisal of the home, valuation of personal property, researching job opportunities, and working with the facilitator or child advocate towards developing the parenting plan.
In many communities, full team meetings are set for only two hours, and the team works diligently to accomplish their goals during that time-frame. After two hours, participants tend to lose focus, and may become more emotional. However, in some situations, such as when the divorce must happen quickly or the clients are often unavailable, if both clients agree, then the meetings can be scheduled to last longer.
Prior to adjourning the meeting, the team should schedule the next professional teleconference and the next full team meeting. The entire team is encouraged not to cancel and to be on time to avoid unnecessary delay and costs.
Initial Discussions Between Counsel
Once both husband and wife retain collaborative attorneys, the collaborative process begins. The attorneys begin discussing the issues they perceive are involved in the case, as well as any urgent temporary matters. If a temporary matter must be addressed expeditiously, the lawyers will work quickly to retain neutral professionals and to schedule the first full team meeting. If that cannot happen soon enough, the attorneys may need to work together with the parties to resolve the temporary issues before the neutrals are retained.
[expand title=”CONTINUE READING…”]The lawyers will also discuss whether the couple should proceed under a one-coach (facilitator) or a two-coach model. Generally, communities have their own protocols regarding which model is used most often. But certain situations may require deviating from the standard arrangement. Counsel will modify the standard protocols to meet the specific needs of the parties.
Often, the lawyers will choose both a non-aligned facilitator and neutral financial with whom one or both have worked successfully in the past. When time is of the essence, or it’s likely the two clients cannot agree on which collaborative neutrals to engage, this process works best. But the participants may request that their counsel suggest non-aligned professionals for the clients to interview before deciding whom to retain. If the parties are more hands-on and reasonable, without time pressures, then permitting one or both of them to consult with various neutrals and have a say in who is retained makes good sense. It is the clients’ process, and some will want more control over it than others.
Counsel may discuss the possible need for any other professional neutral, such as a child advocate or a property or business appraiser, now. However, it may be too early to determine whether additional neutrals are necessary.
The attorneys also discuss the language of the participation agreement. Often, standard forms work best, but, based on the specific couple involved, the agreement usually used in the community may need to be revised. The attorneys may include their clients in these discussions or may opt to exclude them from this stage of the negotiations. That decision should depend on the individual clients and how involved and in control of the process they wish to be.
Once the language of the participation agreement has been determined, the attorneys send it to their clients to review prior to the first team meeting. When both have reviewed it and clarified their questions before the first meeting, less explanation will be required during the full team meeting when all professionals are billing for their time.
Once Neutrals Are Retained
Once the neutrals have been retained, each client meets with the facilitator to discuss his or her goals, issues, concerns, and relationship history. The facilitator prepares a written report of the interviews for the team so that they have a better understanding of the clients’ personalities, their strengths and weaknesses, and how to avoid pitfalls that might arise in the process based on this personal information. Thus, the professionals can refer to this report at will during the entire process.
[expand title=”CONTINUE READING…”]By now, the first professional teleconference and the first full team meeting have been scheduled. The facilitator prepares the agenda for the team meetings, including items scheduled by clients. These will be e-mailed to the professionals for discussion prior to each professionals-only teleconference.
During the teleconference, the professionals discuss any changes to the agenda, the strategy for each full team meeting, including how best to raise certain sensitive issues, and how to ensure that the process runs smoothly and efficiently. They also brainstorm both on techniques to assist the clients in navigating the collaborative path and also on how to share party-to-party communications.
The attorneys circulate the agenda for the full team meeting to all participants ahead of time. The clients are invited to comment on the proposed agenda. If it isn’t the first meeting, they should include approval of the minutes from the prior meeting and reports regarding the status of the clients’ homework assignments. Relevant documents that will be used during the meeting should be copied and packaged in advance to save time during the meetings.
One of the professionals, often the financial neutral, is assigned to take notes of the full team meeting to ensure the team a record of what occurred. It is stressed to the clients that, just because something is included in the minutes, it does not mean that it is the clients’ agreement. Within three days of a meeting, the recorder should remit them to the other professionals, who will then return them with their comments and corrections.
Once the professionals have agreed on the minutes, the recorder will send them to the clients, who may also suggest edits. Once finalized, all participants may sign them prior to the next meeting, depending on the protocols established by the team.
Brainstorming settlement ideas is a crucial component of the collaborative process. Collaborative practice provides an open environment that encourages everyone on the team to participate. The participants should feel as though their thoughts are being heard and their interests validated. Collaborative professionals will encourage active listening in a casual environment.
[expand title=”CONTINUE READING…”]The brainstorming step follows the clients’ identification of goals and interests. Brainstorming is a fast-paced exercise in which the participants have no time to self-evaluate or to form preconceptions about any options suggested. Ideas should be tossed out to the group in an uninhibited, creative fashion.
Someone on the collaborative team will pull out the chalkboard or the flipchart and the multicolored pens. One team member will record every idea, taking brief notes so that ideas are not forgotten or misplaced, and team members are able to build on ideas that have already been mentioned and noted on the board.
No suggestion is a “bad” one. The team should be encouraged to think “outside the box” and discouraged from criticizing or complimenting any of the ideas, especially at this time.
Avoid evaluation at this point to sustain receptivity to all the potential alternatives. Offering a wide variety of options, which later can be compared and contrasted to each other, which in turn sometimes leads to options yet unidentified, ultimately leads to the best chance of reaching a settlement that addresses the clients’ most important concerns and interests.
Before brainstorming, the professionals should remind participants of their goals, encourage them to forget about their positions, and coach them to focus on their interests. They will urge the divorcing couple to explore options, even if they do not feel that they are feasible alternatives.
In brainstorming, small components are easier to manage than large issues, so implement a course of baby steps. Begin brainstorming by discussing what choices are already working for the spouses.
Next, develop objective standards for a plausible agreement. Talk openly and frankly, bouncing ideas off of one another.
Discuss reasonable hypothetical scenarios. Here the professionals will suggest alternative approaches that have worked in other cases, bringing their expertise to the table.
The team should limit itself to a specific period of time or number of ideas for this session. This will maintain the quick pace of brainstorming which is important when generating options.
Once the participants have offered many ideas, begin to tweak and trade possibilities in order to move toward the final settlement. Evaluation begins here; this is the time to explore solutions further, using conventional approaches. Determine how the participants’ interests can be met by the proposed solutions. Discuss the cost and benefit to each client for each item. Take time to have each step into the other’s shoes and analyze whether s/he would be happy with the proposal if s/he was on the opposing side.
Through brainstorming, collaborative team participants are able to explore many different scenarios in their pursuit to reach an effective settlement agreement.
HOW THE FACILITATOR HELPS CLIENTS UNCOVER THEIR GOALS
To assist a client in understanding his goals, the facilitator will ask him to visualize how he felt when he was first married, when he was in love and excited about the future. She will ask him to close his eyes and to remember how he felt back then. She will talk in a soothing voice, trying to relax him as much as possible. She may dim the lights and/or ask him to lie down. This serves to remind the participants of the commitments they made to one another and of the positive intentions they had back then.
[expand title=”CONTINUE READING…”]She may ask how they would have felt back then if a trusted friend had said, “I know this is unthinkable, but divorce does occur, and it might happen to you and your new spouse. Loving your spouse as you do today, what promises would you make about how you will behave if you should have to divorce some day?” She might ask how they would have responded.
If the client responds negatively or positionally, the facilitator may choose to take him back even farther. “What qualities in your spouse did you first fell in love with? Her sense of humor? Her good nature? What did you two have in common? What did you enjoy doing together back then? How did she make you feel? Can you recall those feelings for me here today?”
The facilitator may then ask the client to describe his/her wedding day. “What feelings did you have? Excitement? Love? Why did you feel that way? Can you remember how that felt? Can you recall those feelings for me here today?”
Perhaps the facilitator will then request other details about the marriage in order to elicit a positive response. “How did you feel on your first anniversary? How did you feel on the day when your child was born?”
The facilitator will tread carefully with these questions, looking for but avoiding possible hot button issues.
Once the individual reaches a place where he is remembering the past fondly, the facilitator will again ask what his goals are for the divorce. The key to uncovering the client’s underlying interest is to link the solution to the interest to be solved. The facilitator may need to guide the participant by offering examples of goals that are more profound than quantifiable rewards like houses and bank accounts.
Participants should be encouraged to think about what truly matters to them, more than anything else, regardless of whether it relates to the divorce. They can then focus on which of these broader goals or interests they want to achieve through the divorce process.
Identifying goals is key to interest-based negotiation. It is the secret to resolving conflict in a way that ensures a lasting settlement agreement.
WHY INTERESTS AND NOT POSITIONS?
When the collaborative divorce neutral facilitator meets with the clients for the first time, she begins by asking them to describe their goals, what they would like to accomplish in their divorce. Then she explains the importance of understanding the difference between a position and a goal or an interest.
[expand title=”CONTINUE READING…”]A position is a specific demand. An interest is the reason at the heart of the position taken. Increased stress often masks the true motives that influence people to take the positions that they do. The interest is the underlying concern or need, more general than a position, and therefore open to interpretation.
Interest-based negotiation encourages each participant to understand where the other is “coming from.” Position-based negotiation is an adversarial approach that considers only one side, “what I want.” It limits each person to considering only his or her wants and needs, and restricts the negotiation process in the same way that blinders impede a horse’s vision.
Focusing on positions, rather than on interests, hampers settlement options. A collaborative team focuses the participants on achieving their goals, rather than on demanding their positions. By helping each person define his or her goals, the team can generate multiple settlement options to accomplish each one. Articulating goals expands the bargaining parameters and enables spouses to understand that there is more than one way to resolve their issues. By prioritizing goals, the team can work towards achieving each person’s most important objectives and can then agree to compromise on less important ones.
Also, couples who spend time identifying their big-picture goals at the outset will be likely to see that they share many common interests and concerns, which will play an important role in achieving the best possible outcome for both of them. As the process plays out, when the team reorients the clients by reiterating their goals, the team enables them to retain their focus on the big picture.
Although people undergoing a divorce are, by definition, in conflict, by focusing on interests rather than on positions, they are able to negotiate reasonably, without using threats, intimidation, or ultimatums. If one of them insists on a specific outcome, s/he is taking a position, rather than negotiating an interest. If the other person takes the opposite position, which they almost always do, the participants deadlock. However, if they discuss each other’s fundamental interests, they are likely to uncover different outcomes. They will identify goals and brainstorm multiple options to achieve them, rather than adhering to a single choice that satisfies only one position.
Consider the many layers of an onion. Positions are the outer skin and the superficial layers close to the outer skin. They are shallow and not as connected to the core because of their obvious proximity to the surface. They are simply too accessible to be useful. Like the onion, the strong and real flavor of a client’s interests is found deep, many layers below the surface, closer to the heart. By actively listening to the participants, asking questions, and reframing their comments, the facilitator peels the onion, finding the heart of the matter, their core interests, rather than their positions.
THE SEVEN BIGGEST DIVORCE MISTAKES
MISTAKE #1 – ASSUMING YOU MUST LITIGATE
There are various ways to dissolve your marriage that don’t require contested litigation.
You may choose to handle your divorce yourself, without hiring attorneys. If you haven’t been married long, do not have children, and have few assets and liabilities, negotiating an agreement with your spouse and filing it in court on your own is not terribly difficult. It will be the least expensive way to dissolve your marriage, and is the option most people often choose.
[expand title=”CONTINUE READING…”]Some people are able to reach an agreement without the help of any professionals, but it’s too complicated to use a simple form. Others believe that they have reached an agreement, but one or both of them want an attorney’s advice before signing anything. Whatever the reason, after the sit-down at the kitchen table, one of them may then retain a lawyer who drafts what his client understands to be their settlement agreement.
At times, one spouse hires an attorney, but the other does not, and the attorney and the other spouse negotiate. Or the lawyer retained by one spouse to review the agreement the couple thought they had reached recommends certain changes. Again, the attorney then negotiates an agreement with the unrepresented spouse.
Another alternative is cooperative divorce, which is a principles-based dispute resolution process in which both clients are represented by attorneys. It is settlement-based, but leaves open the possibility of litigation if, and only if, it is absolutely necessary.
Mediation is a dispute resolution process in which an impartial person facilitates settlement negotiations between the two spouses. In mediation, the couple, either together or separately, either with counsel or without, sits with the mediator to work out their agreement. If the relationship has become oppositional, then the mediator will often work with both spouses at the same time, albeit shuttling back and forth between them in their separate rooms.
Collaborative practice is premised on three primary principles: the spouses’ pledge not to go to court (i.e. to war); their pledge to an open and transparent, but private and confidential exchange of information; and solutions customized by the clients to account for the highest priorities of the adults, their children, and any other interested clients. Each person retains a lawyer, as well as a team of other professionals who are neutral, usually a financial professional, at least one mental health professional, and sometimes a child specialist. This practice method consists of a series of non-confrontational meetings, between each spouse and each neutral professional, between each spouse and his or her attorney, sometimes between both spouses and each neutral professional, and almost always of the full team, referring to all of the professionals, neutrals, lawyers, and both spouses.
Understanding the different process options is an important first step in resolving your divorce with as inexpensively, stresslessly, and quickly as possible.
THE SEVEN BIGGEST DIVORCE MISTAKES
MISTAKE #6 – NOT GETTING A SECOND OPINION
A lawyer should explain the various options available for obtaining that final judgment. But lawyers are human. They have biases. They make mistakes. They want to make money. Always get a second opinion before choosing an attorney. But once you do retain counsel, take his/her advice!
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Most attorneys prefer a certain process, like litigation, mediation, or collaboration. A trial attorney may not understand that she should explain all divorce process options to you so that you can choose the best alternative for you. And if she is not collaboratively-trained, she won’t be able to effectively explain that process.It is important to understand all of your options, so it is best to interview several attorneys. Further, attorneys have different personalities. Some are bulldogs, wanting to go to war over almost every issue. Some attorneys are natural negotiators and more comfortable trying to get you to come to a reasonable settlement.
Moreover, you’re going to be spending a lot of time with your attorney, so if possible, it is crucial to hire an attorney who you actually like, who shares your values. No matter what process you choose, your attorney will be your teammate, and your team will be more successful if you get along with one another.
THE SEVEN BIGGEST DIVORCE MISTAKES
MISTAKE #7 – NOT HIRING A COLLABORATIVE LAWYER
A collaborative divorce will save you time and money, prevent emotional trauma to you and the ones you love, ensure personalized results with which your family can live, and protect your relationships with the people about whom you care. While most divorce processes address only the legal and financial separation between the clients, the collaborative process addresses the emotional element of the dissolution of their marriage, as well.
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Professionals work as a team to help you resolve your divorce. Generally, the team consists of an attorney for each client, a neutral mental health facilitator, and a neutral financial professional. All team members should be specially-trained in the collaborative paradigm, although a team may agree to the clients’ choice of a professional who has not yet been trained collaboratively, if they believe that they can collaborate with the clients’ nominee and that s/he will contribute to a successful collaboration.Collaborative meetings are intended to be non-confrontational, and to focus on the shared primary goal of finding acceptable resolution between the spouses. Like the neutral team members, collaborative lawyers are trained to work with one another and the clients to manage communications, to ensure that each client is heard, and to explore each issue and possible solution fully. The process does not rely on court-imposed resolutions but instead permits the clients to negotiate in a safe and structured atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of the restructured family.
The clients pledge to open and transparent communication, but private and confidential exchange of information.
The critical element of the collaborative process that distinguishes it from any other is that the collaborative attorneys will withdraw and the spouses must retain separate trial attorneys if any adversarial proceedings ensue. This assures that everyone involved in the process is committed solely to the collaboration and its goals; no one splits his or her attention between collaborating and preparing for possible litigation in the event that the process is terminated.
While clients may be more comfortable with the idea that they will not lose their attorneys if they cannot reach a settlement, the fact that the clients cannot easily choose litigation over settlement means that reaching a settlement is more likely in the collaborative model.
Furthermore, while there are many ethical lawyers out there, many of them simply do not understand that we all have a conflict with our clients; we want to make money and our clients want to save money. The collaborative process eliminates the majority of this conflict by eliminating the lawyer’s ability to “stir the pot,” whether by design or by accident. The lawyer’s sole job in the collaborative model is to help the clients satisfy their interests and settle their divorce. If he fails in that task and the collaboration terminates, then he loses his job, and the clients litigate.