Collaborative Law Divorce 101
What is Collaborative Divorce? Somewhere between Mediation (one mediator, two spouses) and Negotiated Settlement (two lawyers, two spouses) lies Collaborative Law Divorce with a new set of rules and lexicon that appeals to the couples wanting to dissolve their marriage in a non-adversarial and “sane” way and protect their relationship or the relationships with their children. Each spouse is represented by their own attorney. They enter into a collaborative law contract, stating that they will try to resolve their divorce issues via collaborative practices and that they may not go to court without voiding the contract. They also sign and agree to abide by the "Principles and Guidelines" of the process. Any party may quit at any time and that also voids the contract, but the attorneys may not represent their clients in any litigation of the divorce issues, and no testimony in court may be derived from the collaborative proceedings.. Hence, the parties agree to finish, or all of the time, expense, and effort of the collaborative process will go to waste.
The parties meet in “fourways” – meetings of spouses and their respective collaborative attorneys to discuss the issues calmly and using reasoned arguments to back their positions. Parties are encouraged to understand the point of view of their spouse in discussions and the attorneys are only there to “guide” the process. Other experts may be brought in to "coach" the spouses on how to talk to one another or treat issues related to children or finances. Mediators or Arbitrators brought into the process to resolve harder issues are also an option. Threats of court are disallowed.
Such meetings continue until the divorce issues are fully resolved. Communications in between meetings are allowed as well, and as the name implies, the four parties are encouraged to work together towards constructive solutions to the issues at hand.
The pitch is easy to find in numerous articles published on the subject. Just Google “Collaborative Divorce” and many links will turn up, surely including works written by my wife’s attorney, the so-called “high priestess of Collaborative Law”. Ask your prospective collaborative attorney for reprints. My wife’s attorney supplied a stack of them one inch thick since she was well published. Check out the video too ( YouTube Book Promotion). Collaborative Law divorce is described as a sane way to dissolve your marriage, avoiding the insanity and emotionally straining public court system. There are lots of “touchy feely” descriptions given about how the two parties sit in a nice quiet non-confrontational environment and work out their differences with common goals in mind. This indeed describes a collaborative setting and it certainly has the lure of a lower stress process to end what is always a painful event.
A lot of what is described in the collaborative law pitch is not exclusive to collaborative law divorce. The rules are somewhat different, but it is important to note that a collaborative spirit and process may be undertaken without entering into a collaborative law divorce contract. For example, sitting down with your spouse and the lawyers is not in the exclusive domain of collaborative divorce. Working out a settlement that is for the best interests of all parties involved is not either. In fact, reading a little deeper into the pitch reveals a paternalistic attitude where the lawyers “guide you through the process” kind of like parents, and bring in “coaches” in case you can’t talk to one another effectively about subjects. Nothing can be done without the aid of a collaborative professional involved (PG S5).
In any legal agreement, the subject matter is often focused mainly on what happens when things go wrong. The agreement itself is defining provisions for a bad-case scenario and it is consulted mainly when things go wrong. When listening to the collaborative pitch, it is critical to question how the process works when things don’t go as planned. It is easy to get taken up by the calm sounding description of the process and forget that things may not go as you expect. It is that case that essentially defines the collaborative process for what it is, since if everything goes easily, you may not need a lawyer at all!
The pitch glossed over many key differences of collaborative divorce, but it typically mentions one key item – that if the case cannot be settled collaboratively, the lawyers are fired and husband and wife need to start over(STIP S1 , PG S8). This is supposed to be incentive for the parties to finish and successfully complete the process outside of court. But the pitch is that “the lawyers are out of a job”, which focuses on the consequences the lawyers will suffer in the case of failure, not the parties trying to get divorced. Rarely mentioned is the thousands of dollars, months or years of time wasted, and general heartache for the parties if the collaborative process fails. Additionally, I was told by one lawyer that failing collaborative cases tend to make the most bitter and hard fought court cases because the spouses feel that they have “put themselves out there” fully to try to settle and things still did not work out. So, particularly bad feelings can be generated when at least one spouse sincerely tries to proceed collaboratively and honestly but accomplishes nothing in the process.
Here are some choice quotes from materials promoting or marketing Collaborative Law Divorce:
From “Handbook for Clients” by Pauline Tesler, subtitled, “An Orientation to the Divorce Process, the Dispute-Resolution Options Avaliable to Clients, and the New Dispute-Resolution Option, ‘Collaborative Law’”, marked ©2001 American Bar Association at bottom: (Author's note: Pauline Tesler is one subject of Author's story)
“It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive.”
“All participants agree to work together respectively, honestly, and in good faith to try to find win-win solutions to the legitimate needs of both parties.”
“.. a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.”
“In CL, there is a parity of payment to each lawyer so that neither party’s representation is disadvantaged vis-à-vis the other by lack of funds, a frequent problem in adversarial litigation.” [Author Note: While fee parity is a key element in CL divorces and it appears in many versions of the Principles and Guidelines (PG), for some reason it did not appear n the version given to us.]
“Is Collaborative Law the best choice for me? … is worth considering if some or all are true for you: *You want a civilized, respectful resolution of the issues. *You would like to keep open the possibility of a friendship with your partner down the road. *You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.”
“Why is Collaborative Law such an effective settlement process? Because the lawyers have a completely different state of mind about what their job is than traditional lawyers generally bring to their work. We call it a ‘paradigm shift.’ Instead of being dedicated to getting the largest possible piece of the pie for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves in their post-divorce restructured families. .. .. .. They expect and encourage the highest good-faith problem-solving behavior from their own clienys and themselves…”
“While the cost of your own fees cannot be predicted accurately, a rule of thumb is that Collaborative Law representation will cost from one-tenth to one-twentieth as much as being represented conventionally by a lawyer who takes issues to court.”
From article on Collaborative Law in NorthBay Biz magazine, October 2004:
“People who choose collaborative law over conventional litigation tend to be highly motivated to maintain effective relationships, solve problems jointly and prevent a court battle.”
Quote by Pauline Tesler: “I was winning great victories as a litigator, yet my clients were miserable. I knew there had to be a different way.”
Attorney Rodney Johnson: “His goal all along is to ensure that the process is always in the hands of the client.”
From American News.com Article No. 1516, 7/27/2000 entitled “Collaborative Law makes messy divorce thing of the past.”
..”couples agree in advance to spend their time, effort, and money on settling their issues, not litigation.”
“Unlike litigation, which can take up to two years, collaborative law divorces take about 6 months on average to hammer out agreements between couples.”
“’The idea of settlement is not new with attorneys, but joining the opposition, that’s a revolutionary idea,’ says David Weinberg, a family law specialist for 35 years who founded the Collaborative Law Association…”
“’We are hired solely to get the (divorce) case settled on a civilized level.’, says Pauline Tesler, a collaborative lawyer…”
Subject of story, Carol is getting a divorce after a 10 year marriage: “But Carol says she likes to call her divorce ‘the most amicable divorce in history.’”
From Pacific Sun, March 4 – March 10, 1998, interview with Pauline Tesler entitled “Civilized Divorce”:
Q: What does the collaborative process cost? Tesler: “It varies. It’s the hourly rate for the lawyers. Typically, we’re able to write up an agreement within five meetings. That can take months, even years of time in a conventional divorce. . . . But say ten to fifteen hours of my time would be reasonable estimate. And my hourly rate now is $260. So, they’re paying maybe three to five thousand dollars to me to get their divorce done…” Author’s note: Tesler’s rate is now $450/hr. See my story for costs in my case…
From “Principles and Guidelines for the practice of Collaborative Law”, handout by attorneys in author’s case: Note that there are a number of different versions of this important document that can be found on the internet.
“We understand that while our collaborative attorneys share a commitment to the process described in this document, each of them has a professional duty to represent his or her own client diligently, and is not the attorney for the other client.”
4.01 “We 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.” [Authors Note: attempts to correct mistakes were subverted several times in my case]
Section VII: NEGOTIATION IN GOOD FAITH “We understand that the process, even with full and honest disclosure, will involve vigorous good-faith negotiations.” “Each of us will be expected to take a reasoned position in all disputes.” “Although each of us may discuss the likely outcome of a litigated result, none of us will use threats of litigation as a way of forcing settlement.” [Author’s note: this is a KEY element!]
The literature on CL often speaks about fee parity - where both husband and wife pay same fees for their respective lawyers. One version of the Principles and Guidelines found online stated it this way:
“We agree that our attorneys are entitled to be paid for their services, and the first task in a collaborative matter is to ensure parity of payment to each of them. We agree to make funds available for this purpose.”
[Curiously, this was never discussed or offered to us in our case by the lawyers involved: Pauline Tesler and Eugene Seltzer, and it is conspicuously missing in our Principles and Guidelines.(section 11) This makes me suspicious that a different version was used because of a difference in assets between my wife and myself revealed to lawyers before signing the contracts, even though we had specifically split up money from our joint accounts to pay for attornies when separating. Wife’s hourly rate was $450/hr while mine’s was $350/hr. It was demanded that I pay her fees completely in order to settle. -Author. ]
Other links to fee parity statements may be found on the links page.
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