COLLABORATIVE DIVORCE OR ADVERSARIAL DIVORCE

At the time of separation and divorce, one of the most important, if not the most important, decision one has to make is whether to pursue the resolution of all marital issues through the collaborative divorce process or the traditional adversarial divorce process. While it is possible to shift from one process to the other, once one embarks on either route, changing course later is much more difficult. The key is to make a rational and informed choice as to which approach is best suited for your situation. At the time of separation, one or both of the parties are typically at an emotional low point where the powerful emotions of anger, betrayal, hurt, rejection, disbelief and bewilderment dominate. It is exactly at this time of impaired decision-making that you must choose whether to take the traditional adversarial divorce resolution route or consider the alternative of collaborative divorce. The forward-looking question is when you look back at your divorce experience in the rear-view mirror of 20-20 hindsight, will you be able to say that you opted for the best choice.

The collaborative divorce process certainly does not have a monopoly on the ability to resolve divorce cases without going to court. Through the assistance of skillful and experienced divorce attorneys, cases can be resolved on the basis of a negotiated settlement without the filing of any court papers. But the specter of court always looms in the background as an unspoken threat. This reality can influence not only the extent to which all information is put on the table, but can direct the language and tenor of the negotiations This is particularly true when one party or the other is threatening to go to court and the other is determined not to.

What the collaborative divorce process provides is a predictable, controlled outcome fashioned entirely by the Parties rather than a Judge. The win-lose model of the adversarial legal system will produce a “result” or an “answer” to disputed issues, but Court decisions are limited in terms of what issues can be brought before the Court and the presentation of evidence is limited by the many evidentiary rules. Then a relative stranger to the case, the Judge, must make a decision often on limited information. The Parties shift from a history of direct communications to everything going through their attorneys often resulting in simple propositions becoming tangled in the web of additional concessions, all communicated through the vocabulary of posturing and positioning. This, combined with the inherent inefficiencies of the Court litigation system, often creates financial and emotional havoc in the process.

WHAT IS COLLABORATIVE DIVORCE?

Collaborative law is on the cutting edge of alternative dispute techniques of divorce resolution that is the subject of high client demand but low attorney participation. Collaborative law offers a common-sense, constructive alternative and only requires two rational participants who recognize that they have fundamental differences but share a commitment to resolve their differences, and two trained collaborative law attorneys who are well-versed in the mechanics of collaborative law and adhere to the underlying philosophy of a collaborative resolution as opposed to litigation. Collaborative law involves the process where specially trained divorce attorneys work with clients who are both committed to dealing with the financial, emotional and legal aspects of separation, divorce and co-parenting in a constructive way.

Collaborative law is based on certain philosophical premises including:

• Recognition of the need to resolve disputes in a rational manner
• Respecting the needs of all of the participants
• Empowering couples going through a divorce to resolve their own disputes without turning their decisions over to lawyers and an impartial third person
• Recognition that the legal arena establishes statutory law points of reference, but does not determine and limit the strategies that the parties can use to address their own needs and interests
• A frank sharing of the parties interests and needs maximizing the potential for reaching a settlement that satisfies these needs and interests.
• Difference from litigation.
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The collaborative law commitment involves a commitment to a set of specific ground rules premised on the pledge that the parties will not submit their issues to the “meat-grinder” known as litigation. These parties recognize that the collaborative law structure reaches settlement faster than other forms of negotiation in a much less traumatic fashion.

The chief goals of collaborative law are the following:

• Avoid litigation
• Minimize the conflict
• Creative problem-solving
• Preserve financial resources
• Principles And Guidelines Governing The Parties’ Conduct During The Collaborative Process:
  The parties acknowledge that the essence of Collaborative Law is the shared belief by participants that it is in the best interests of the parties and their families in typical family law matters to avoid litigation.
• The parties therefore adopt this conflict resolution process, which does not rely on a court-imposed resolution, but relies on an atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of the family.
• The parties’ goal is to minimize, if not eliminate, the negative economic, social, and emotional consequences of protracted litigation to the parties and their families by settling the case without court intervention.
• The parties shall give full, honest, and open disclosure of all information, whether requested or not.
• The parties are expected to take a reasoned position in all disputes. Where such positions differ, the parties are encouraged to use their best efforts to create proposals that meet the fundamental needs of both parties and if necessary to compromise to reach a settlement of all issues.
• The parties shall endeavor to protect the privacy, respect, and dignity of all involved, including the parties, attorneys, and consultants.
• The parties shall maintain a high standard of integrity and specifically shall not take advantage of each other or of the miscalculations or inadvertent mistakes of others, but shall identify and correct them.
• The parties shall communicate with one another civilly and constructively and will avoid making accusations or claims not based in fact.
• To maintain an objective and constructive process, the parties shall not pressure each other to discuss settlement of their dissolution issues outside the settlement conference setting. Neither party will attempt to discuss settlement at unannounced times by telephone calls or appearances at the other party’s residence, unless agreed to by the other party.
• The parties shall direct all attorneys, accountants, therapists, appraisers, consultants, and experts retained by the parties to work in a cooperative effort to resolve issues without resort to litigation.
• In resolving issues about the care and custody of the parties’ child, the parties, attorneys, and therapists shall make every effort to reach amicable solutions that promote the children’s best interests.
• The parties understand that inappropriate communications regarding their dissolution can be harmful to their children, and the children shall not be included in such communications unless it is appropriate and done by mutual agreement of the parties or with the advice of a child specialist. Neither party will interrogate a child as to the activities of the other party, and the child shall not be forced to chose between or blame either parent. Absent a serious danger of physical or sexual abuse, neither party shall impede access to the children by the other party.
• The parties understand there is no guarantee that the process will be successful in resolving their case.
• The parties understand the process cannot eliminate concerns about disharmony, distrust, and irreconcilable differences which have led to the current conflict.
• The parties understand they are still expected to assert their respective interests and their respective attorneys will assist them in that regard.
• The parties should not lapse into a false sense of security that the process will protect them.

Doing this with the guidance of competent, constructive legal counsel minimizes attorneys’ fees and expert witness fees.