Author: As I wrote the content for this website, I knew that I was not an authority on Collaborative divorce, but I could at least relay my experiences (and let others do so as well) to let people draw their own conclusions. But in the process, I developed opinions and criticisms of Collaborative Law Divorce (CL), and I thought it might be good to consult an accepted reference for knowledge on the subject. Enter Pauline Tesler, who was both my ex-wife’s divorce attorney and who co-wrote along with psychologist Peggy Thompson a widely recognized book titled “Collaborative Divorce” on the subject. She also travels worldwide to train others in the "art" of practicing CL. So, what better authority to consult?
Like any religion, collaborative divorce has a good basis in emotionally comforting concepts and a lexicon containing phrases like “ending your divorce as friends.” Even the word collaborative is peaceful. But also like religion, it is the implementation of those concepts, the interpretation of the basics that are critical in actually making it work (e.g. fanaticism versus moderation).
To be clear, there are basic elements of Collaborative Law Divorce that are being questioned from a legal or ethical point of view [see links]. Beyond those, in following the collaborative model, it is the lawyers’ job to stay within the framework since the spouses will not have necessarily the expertise on the subject. As Tesler said in an email to my attorney, "We own the process... ". Like many, I found a lot of promising ideas in Tesler’s book, and I believe CL could work for some people. I very much wish I had read the book before the divorce proceedings began, and I wondered why, for such an important and expensive process, Ms. Tesler did not assign or even suggest that we read a copy of the $15 book as homework. In practice, there were many concepts that Tesler herself did not seem to follow. She didn’t practice what she preaches. Here is a review of the book with selected quotes and comments. Some point out just how different the Tesler behaved in practice (for reasons unknown) and how such behavior can throw CL off track. Others are here just to point out the validity of the book itself... The outline of the book and topics are discussed below and a summary of how the book relates in the bigger picture to the Author's story is at the bottom. For potential users of the CL process, it is your responsibility to be sure the lawyers stay within the process. Deviations are an indicator of unethical and potentially damaging behavior by the so-called experts. Note that Tesler said "We own the process.." while she also claims that the clients run the show in collaborative divorce. It is those kinds of things that are potential pitfalls.
Introduction and Chapter 1
On page 1, Telser says, “Preserving what remains of good feeling between spouses during the divorce process has obvious benefits for couples…” There is much language like this throughout the book as it attempts to portray the collaborative process as gratifying hard work that has a worthy ending in divorce, which Tesler characterizes as "a normal life transition". This is a great goal that did not seem to be of any particular significance in the Author’s case as the story illustrated. It is interesting to note that Tesler terms divorce as "a normal life transition" too. While it may be an every day fact of life in her office, it is far from normal for the rest of us.
Should this person give advice? “Pauline Tesler’s journey from hardball litigator to collaborative lawyer began with an aching sense that something was very wrong with how the legal system handled divorce. She was winning great victories as a litigator, but whether she won or not, her clients seemed to be equally miserable.”
Wow!! It struck me as odd that Tesler states on page 6 of her book that basically, ALL of her clients over the years were unhappy! Winning or losing, her clients always seem to have lost. "Winning great victories" also sounds very litigator-like - in that winning was more important than fairness or doing what was best for the participants. Perhaps Tesler needed (needs) to search deeply as to why her own practices led to such unhappiness in her clients, rather than just the system..
The Best Divorce is itemized with the following characteristics – comparing them to what people generally don’t want:
“Do I want to get advice during my divorce from someone who believes that taking care of ‘number one’ is the only agenda that matters when a marriage ends? Or would I rather be advised by people who believe that paying attention to healthy recovery from the divorce and to creating healthy new systems and relationships after the divorce, can be as important as paying attention to the bottom line.” An easy choice, however my case was focused on the bottom line for me ex, and my concerns brushed aside as the story tells.
“Do I want my divorce advice to come from someone who believes that going to court is just another way of resolving divorce issues? Or would I rather be advised by someone who believes that staying out of court if at all possible is healthier for both adults and children experiencing divorce.?” Same comment: My collaborative case was punctuated with the threat by Tesler of my ex going to court in almost every step of the process. It appeared that that was the only relevant part of the reasoned arguments being made by Tesler to support the demands made. Litigator or Collaborator? Tesler contrasts CL to “adversarial legal representation,” but the contrast was not very prominent in our case and her participation, other than the venue being her office with brie and crakers on the table!
Characteristics that make CL stand above in the book are,
How I so wish such concepts were put into practice in my case! See Story. If your values are not shared, then CL will not help that difference necessarily. It seemed as if all of the CL lawyer's advice and experts available are there to extract those shared values. But what happens when the values are not shared? As for complete advice about the law, it was used as a negotiating tool in my case. Due to some loopholes, the legal advice was just another leverage exploited in the negotiation rather than focusing on actual values. And when it came time to draft the settlement, the law was brushed aside as an inconvenience.
Chapter 2 starts with a quote by Abraham Lincoln, otherwise known as “honest Abe” in historical references. This just stood out as an interesting person to quote given the hypocrisy of what is being pointed out here in the way Tesler implemented CL in the Author’s case what she teaches in this book!
Chapters 2-5: The initiation of the process
These chapters explain in great detail what the collaborative divorce is exactly, and how it should be run, from selecting lawyers and professionals to the meetings and settlement. It is interesting to note that the book discusses talking with coaches prior to the attorneys and four-way meetings. There is a lot of information on selecting a lawyer with proper experience, and how “Making the shift from being a litigator to a collaborative lawyer takes time, training, and experience.” Tesler suggests finding a lawyer that belongs to a local “practice group” that meets regularly to discuss CL and choosing someone that has worked together with your spouses attorney in the past. These are things the Author specifically did by choosing his attorney Seltzer, who was in the same group as Tesler and had worked together in the past. Those things sound appealing but also ended up leading to a perception (and Author's belief) of collusion as described elsewhere on the site. If the attorneys are trained well, then why is so important that they know each other and co-promote their services, in other words, have a business relationship? Tesler recommends asking what the track record of the prospective lawyer-to-be is and it is a good idea. The Author failed to do so. On the other hand, Tesler doesn’t offer any information on her own track record in the book at the time of publication, only saying in a later chapter that a “low percentage” of CL cases fail. Tesler talks about interviewing a pool of potential candidates for attorneys, coaches, etc, but fails to mention the costs of doing so. Most attorneys charge an hourly fee for their time in a consult. Every expert consulted in CL costs money. And typically they all are related in their businesses.
There is a lot of text devoted to finding a divorce coach for each spouse and how the coaches enter into the process to aid communication and keep things smooth. This was never pursued in the Author’s case. Tesler specifically mentions that lawyer-client confidentiality is preserved even in a collaborative case, stating that “the lawyer will never disclose anything that you have stated is confidential.” It is confusing whether one has to state the confidential nature of information explicitly, and the Author’s attorney said that the lawyers may share information they deem appropriate – in conflict with the confidentiality provision. The California State Bar seems to be confused about this as well as discussed in the bar complaint. The CL documents are discussed and the process of gathering facts and figures is discussed.
Tesler describes the four-way meetings as “legal four-way meetings” in Chapter 4, but the meetings are not binding in any way, nor may they be used in court in any way. They don't need to follow any law. So how are they legal? It appears she is trying to differentiate those meetings from any (also non-binding) conversations you might have with your spouse. A key quote from this same chapter is, “Collaborative lawyers also encourage their clients to think about the qualities and principles that would characterize a good divorce process and outcome for each of them and to bring that information into the legal four-way meetings.” It is hard for the Author to believe this given the extreme demands made by her client in his story.
One key issue is in the statement, “Unlike conventional settlements in old-style divorces, in collaborative divorce the lawyers never negotiate for you and never conduct negotiations without both you and your spouse being present.” So, how does email figure into this equation? If communications can be made more efficiently using email and copying the group of four, why can't they aid in the process. They were not allowed in the Author’s case. Face-to-face meetings are more meaningful, but also vastly more expensive.
The entire Chapter 6 is devoted to the role of divorce coaches and Tesler states, “It is especially helpful to start with coaches rather than collaborative lawyers if you and or your partner are in an emotional crisis at the start of your divorce.” This again was not part of the Author’s story and reading the book made it look like an important missing piece of the process. In fact in our case, the lawyers recommended proceeding without coaches since we appeared to be on good terms. But this quickly degraded and hence coaches sound like a necessity in our situation.
There is whole section on first producing a “mission statement”, where the spouses write out what their goals are too after discussing their principles and values with their divorce coaches. This might include as the book points out, “Behaving well. Ending the divorce amicably, Maintaining contact with the extended family, …” These are all great tools for a peaceful proceeding and positive outcome. They also don’t seem to relate to the Author’s story.
Chapters 6-9 : The process
Chapter 6 talks about how to reach resolution and “brainstorming” through many ideas to find common ground. There is nothing innovative about this and it is part of any collaborative approach to problems solving (e.g. in business training sessions). But Tesler contrasts this to the old-style divorce, “in which each side, working separately, exchanges a sequence of offers and counteroffers arrived at privately with one’s own lawyer.” Tesler did indeed resist this type of negotiation in the Author’s case, however it is a way of negotiating, and she fails to say how developing offers in private is counter productive if they are accompanied by explanations by the parties as to the reasons they are making an offer, which is a requirement of collaborative principles and also the best way to negotiate anything. While developing offers privately may decrease the personal interaction, that may also work well in a case where emotions run high and 'gut reactions' the spouses have to each other take place in person. Additionally, there is no rule that a negotiated settlement must be done with back-and-forth offers made only by lawyers. If the couple wants to meet alone or with the lawyers, that is still possible outside or the CL domain. The couples are asked to consider their principles and values when making proposals, which is key to following the mission statement.
Tesler says, “Some couples may find that there is no need for negotiations as such, because the obvious solutions may quickly become apparent.” (from brainstorming). But she fails to discuss a glaringly obvious and common conflict: fighting over plain old money, which appears to be the pheonix of many divorces. There are phrases such as the clients getting in “the Zone” and creatively splitting things that may not be in a traditional sense of 50/50 to achieve the best outcome.
The completion of the process is discussed next. Tesler states about the settlement agreement, that in an old-style divorce, “lawyers often use the process of arriving at a final written settlement agreement as an opportunity to push for more concessions or take advantage of misconceptions or oversights on the part of the other lawyer.” This sounds exactly like Tesler in the Author’s story! A final four-way meeting is suggested as a crowning event for the successful process of collaborative divorce. Tesler mentions creating a conflict resolution plan for the future as well, which seems especially important for couples with children. This was never mentioned in the Author’s case where some education expenses were to be paid in the future and the wife’s income could vary in the future. Tesler's idea was simply standard language saying that if either party fails to perform under the settlement agreement, the other party can drag them into court and have the non-performing (ex-)spouse pay all legal fees. Nice.
Finally, there are sweet stories about the final four-way meeting, with forgiveness, congratulation on a job well done, and even lighting candles in one case. No campfires or singing “Kumbaya” were mentioned, nor was the cost (typically $800-900/hr for Tesler and the other CL attorney) for this meeting. That is some expensive party.
Chapter 10: FAQ
This chapter addresses questions and problems that come up and has a “FAQ”- frequently asked questions section too. It has a lot of good advice about talking to other people, developing a daily routine and writing exercises to help deal with the stress of initiating and surviving a divorce - probably written by co-author Thompson who is a psychologist. It re-states the importance of using coaches if the spouses simply can’t communicate effectively due to old patterns and resentment.
Chapter 10 asks questions that critics often ask, and answers them in the way the pitch for collaborative divorce does. For example, Tesler crafts a question by a fictitious person whose brother is an attorney. The questioner says that her brother asked, “Isn’t there a danger your collaborative lawyer will push you into accepting a settlement agreement that is less than you’re entitled to? After all, the lawyers are out of a job if you don’t agree to a settlement.” I think it is the other way around, correct? If you agree to settle, the lawyers ARE out of a job because the case is over. It is an extension of the case that keeps the lawyers employed. And making the lawyers victims in a failed CL case could not be further from reality, since the poor clients are the ones losing their patience, time, money, etc. when failure occurs. FAQ questions are skillfully posed or answered in a way to put collaborative divorce in a beneficial light.
This chapter reports that Tesler does not have scientific statistics but that “collaborative lawyers everywhere report that only about 10 percent or fewer of their collaborative cases end short of full agreement.” Perhaps Tesler should attempt to get some real statistics and an idea of how satisfied her clients are in the end. How about her own cases, the ones we are supposed to ask about when interviewing her for a job? Aren't those important enough to include in an unbiased way? Also, remember the Introduction? Tesler stated that none of her clients were satisfied before she undertook collaborative divorce. Worse yet is that Tesler goes on to state the it is usually the couples with mental illness or drug problems that sometimes don’t succeed with collaborative divorce! The strong implication is that if you’re not mentally ill, addicted to drugs or violent, you should be able to get a collaborative divorce with great success. Does this mean that approximately 10% of people out there have such severe problems – since that is the number claimed for CL failures? This tends to make the book sound inaccurate and more like salesmanship.
Finally, Tesler points out characteristics of couples that leave CL to go fight in court and to the severe problems listed above she adds, “Inability to participate in good faith… unreasonable goals, [take note] Collaborative divorce professional helpers who lack sufficient understanding, experience, or skills to help people thorugh major challenges when emotions run high.” This last point relates highly to points I make below about how the scenarios in the book differ from experience. One lawyer the Author consulted said that the worst court battles she sees are the ones where couples start with collaborative divorce! After all that time, money, effort and emotion, a failure of the "process" has deeply more consequences than the "collaborative lawyers being out of a job" as Tesler always harps.
Other of the Book’s Claims - what stands up
Science and claims: When scientists (or even politicians) make claims, they need to back them up with data to be credible. Being trained technically (Ph.D. in Engineering) I want to point out what I feel are weaknesses in some basic claims made in Tesler’s book:
Tesler states, “Let us assure you: we base everything you will learn about in this book upon the incontrovertible evidence of our own experience.”
However, Tesler doesn’t offer any of that incontrovertible evidence in the book other than some stories of couples that have seen the light in CL (fictitious?). There are no statistics about how many cases settled versus not, or how much the legal fees totaled. This is odd since she instructs the reader to be sure and ask such questions of potential CL divorce attorneys before hiring them (in Chapter 2)! There is only one statement that “Most of our collaborative divorces involve work with the team over a period of four to twelve months.” Statement such as these would be much more credible if she offered some actual data from her own extensive experiences over the last 10 years. Nothing about that data would violate confidence of her clients.
The other glaring statement made in many different ways is how collaborative divorce is compared to the alternative(s). For example, “…the total cost of all the divorce-related professional services (including the fees of the collaborative lawyers and financial consultants as well as the coaches) will generally be much lower than if traditional adversarial lawyers had handled the case as a legal battle.” There is a sidebar entitled “Do you want your divorce to be public property?” While other divorce texts warn about the high costs both emotionally and financially of going to court, Tesler’s book only does a cursory comparison between collaborative divorce and Mediation. To me, this sounds like comparing a band-aid to an amputation. The other books I consulted explained the spectrum of choices available to obtain a divorce, only the most inflammatory being a litigation. So, I believe the comparisons are invalid in that Tesler’s book leaves out methods such as arbitration, or simply negotiating a settlement with each spouse represented by their own attorney. The most common alternative to CL may often be court, or as one attorney told me, the fiercest battles in court often stem from failed collaborative cases! (because the participants are so frustrated after putting it all out on the table, working and incurring fees and ending up with nothing) But this does not speak well of CL, since it appears to have a very high cost for failure (including forfeiting all the time and costs). Couples should be aware of all the ways of getting a divorce and consider methods like arbitration (private judge) if mediation fails before running off to court. But by excluding the spectrum of choices in the book Collaborative Divorce, the credibility of the argument is diminished. There is much fear mongering about what happens to you if you do not choose collaborative divorce - a lengthy awful costly court litigation. What's in between?
With respect to the quote, four to twelve months of a team of professionals is not necessarily within the budget of many people! A friend of the Author met a CL divorce attorney at a social gathering in the same county as Tesler's practice and she quoted 9-12 months as a typical length of a CL case. The Author’s CL divorce took 11 months and involved only the two attorneys (not a team of professionals). Cost: $58,000. What is the average court case length?
“Here’s what the presiding judge of the San Francisco Superior Court had to say about collaborative divorce: …[accolades]” Apparently the judge did not want his name to appear with his quote. Why is that?
4. Stories in book
The book states that the stories are real but the names are changed to protect the privacy of the clients. Some are composites of multiple couples. Given the mistrust of Tesler developed during the Author’s case and other aspects of the book itself, one might question how much artistic license was taken in relating the stories too. There are no indicators of when those stories took place or what those cases looked like in terms of length or cost. They of course are cherry picked to reflect the very best perspective on collaborative divorce! Perhaps some failures would have helped shed light on what can go wrong, even reinforcing why following the process advice in the book is so important! The lack of that (one reason this site exists) reduces the credibility of the book in providing a balanced view of CL.
Relating this book to the bigger picture in the Author's Story
In the bigger picture, the Author's case bore little resemblence to the case stories or teachings of the book and one has to wonder why the author of the book on the subject was not able to put into practice its teachings. Certainly the actions and attitudes of the spouses comes into play and I expect Tesler would lay blame on us (husband and wife) for de-railing the process. But remember this is a process that the attorneys control, have experienced hundreds of times, and that the spouses agree to follow using the attorneys as guides.
Who’s collaborating? The professionals or the spouses?! What offended me so much in my case was the complete lack of collaboration and when reading the book, I started to get the feeling that it was only the collaboration of the professionals that mattered. Or is that collusion?
Coaches, mission and process: One of the glaring differences between the teachings of the book and the Author's experience is that the preliminary work was never accomplished. The book mentions it being a good idea to meet with collaborative coaches before any four-way meetings, especially in the case of a couple that can not communicate well. This was never done in my case, and while coaches were mentioned, the experts (attorneys) seemed to agree that we could dispense with them since we entered the process as friends. The idea of talking to a third party, discussing principles and values and goals for the divorce is touchy-feely sounding, but so is the whole CL process and I believe it could have contributed greatly to our case. It was the disconnect from basic values that really frustrated me the most in my wife's position. So, discussing those (we did on the phone a few times) could have helped tremendously. Further, once we hit a brick wall - when discussing money and alimony - we were no longer communicating on any productive level. So, why didn't our experienced lawyers Tesler and Seltzer jump in and say, "You guys need to see coaches since you're not able to communicate here!" All that happened next was a statement by Tesler that my wife would no longer discuss financial issues at meetings. How could we solve a financial disagreement under those conditions?
What is interesting in Tesler's book is the constant comparisons to "old-style" divorce and conflict. Negotiating the best deal for the client, lack of discussion about common values (mission statement), lack of communication, trying to make last minute changes and negotiations in the drafting phase of the settlement, and ending up as enemies with no fanfare or sense of accomplishment. This exactly describes the Author's case! Our case seemed to degenerate into an old-style divorce rapidly, and the style was one which Tesler is very familiar, practicing as a litigator for a long time prior to CL. As the story says, it appears that the threat of a court scenario was used as a large negotiating chip from the beginning and refusal to negotiate was really a firm negotiating position. She even changed substantive portions of the settlement agreement at the eleventh hour as her book says exemplifies old-style divorce. Corrections to mistakes were rejected as negotiations. Communications between spouses were disallowed offline completely, etc. It was like an old-style divorce except my attorney was passive and operating as if it were a collaborative divorce. How could this CL case become so completely warped in the presence of the author of this book?
Filling in the gaps:
Old habits die hard and it may be that Tesler’s ideas about divorce are better expressed in writing than in practice for herself. Rather than having a heightened sense of following the concepts she teaches, the story on this site reveals that she doesn’t necessarily practice what she preaches, which, as in countless other examples of preaching, dilutes the credibility of the teaching. The book contains a lot of emotionally appealing ideas along with a framework to accomplish a less bitter divorce. But it requires strict adherence to the teachings to work. Since it introduces a whole new methodology, it has to be viewed with a critical eye as well in terms of its claims, many of which are crafted to make CL seem like a cure-all and not backed up with any statistical data of significance. As such, it also takes a hit on credibility for sounding more like a sales pitch than a scientific presentation of a theory. As much as I take issue with the behavior of the book's author in my case, I think the book itself might be good as required reading for anyone considering a collaborative divorce for the same reason as this web site - to help people choose what is right for them and maybe of greater importance - to help people ensure that they are working with professionals and a spouse that is truly committed to staying within the teachings of the CL to make it effective.
** Reference: Collaborative Divorce, by Pauline H. Tesler and Peggy Thompson, (c) 2006, Regan Books/HarperCollins Publishers, Inc. 10 East 53rd Street, New York, NY 10022, ISBN 10:0-06-088943-8, ISBN 13: 978-0-06-088943-2.
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