The biggest difference between traditional litigated divorce and collaborative divorce is the overall frame we hang around the divorce process generally. Divorce litigation is based on the adversarial system, which sets the divorce up basically as a competition between the Husband and Wife. In that competitive context, negotiations tend to be positional, fear-based, and often antagonistic, with a good deal of posturing and mistrust coloring the interactions of the parties and their lawyers.
Collaborative divorce suggests that the adversarial system is simply the wrong system to resolve a legal dispute in a family, particularly when there are children involved and the parties wish to maintain their ability to co-parent effectively after the divorce is final. In that light, instead of a competition, collaborative divorce treats the divorce as a problem to be solved or a crisis to be navigated – similar to how the family would handle a scary health diagnosis, a major financial setback, or the family home burning to the ground.
So rather than Wife and her lawyer looking to maximize Wife’s position on every issue in the divorce, as over and against the Husband (while he and his lawyer do exactly the same thing), parties who choose collaborative divorce agree to (and empower their attorneys to) work toward a “mutually acceptable durable agreement.” With this sort of agreement as the North Star toward which everyone looks throughout the process, the private interactions between the client and the attorney are more about looking for creative (sometimes out of the box) solutions to parenting, financial, and logistical issues that need to be addressed in the divorce, rather than the generation of one-sided proposals that do not take the interests of the other spouse into account.
This problem solving approach to divorce helps clients in at least two major ways. First, this approach saves the parties money because no time is wasted on the lawyers bouncing back and forth with extreme proposals everyone knows will not work, hoping that the parties will finally land somewhere in the middle of the two polar positions from which they start. Collaborative divorce cuts to the chase and tries efficiently to come up with solutions that make sense right off the bat.
Second, this approach helps preserve whatever goodwill and relationship may exist between the parties. By tapping into the parties’ previous conflict that led to the divorce, along with their insecurity about their post-divorce future, divorce litigation tends to make parties negotiate from the least healthy parts of themselves, which feeds into the dysfunction of the negotiation, bogging the whole process down. In contrast, collaborative divorce helps parties see and work from their “better selves,” the parts of themselves that can be reasonable, flexible, and creative. Not only does this shift make the process feel less stressful, but it makes the substantive negotiations go more smoothly and quickly because no time is wasted triggering the other party, causing him or her to retaliate.
In coming weeks and months, we plan to use this blog as a space to explore collaborative divorce in some detail, sometimes discussing larger, more theoretical issues, and other times examining specific pieces of the process.
But the starting point for any conversation about collaborative divorce has to be an overall shift away from the “us versus them” mentality of divorce litigation into something that allows people to work through their conflicts and disagreements with integrity.