Caveats for Divorce Seekers and for Collaborative Divorce:
Now that the characteristics of CL divorce have been discussed and the Author’s case history was presented, some caveats for those shopping divorce are in order. Some of these will apply equally well to non-collaborative settings. All should be heeded if you're doing your best to avoid a difficult collaborative divorce.
FIND OUT AND UNDERSTAND ALL MEANS FOR DISPUTE RESOLUTION AHEAD OF TIME, PLAN WORST CASE, DISCUSS WITH SPOUSE
You may feel that signing a collaborative process will ensure that you have a calm rational discussion with your spouse about the settlement and discover the common ground you have with them to form an acceptable settlement. What happens when that does not occur? How do you factor in the emotions you and your spouse bring to the table and what those may do to the “rational” discussions? Since you could probably do a “quickie” no-lawyer divorce with your spouse if you agree upon everything, (or simple mediation if you agree on most things) you should expect problems going into a lawyer driven process. In fact, you are almost guaranteed problems, since divorce lawyers are experts at creating them in order to solve them for you at a high cost. The only way to avoid this is to keep your lawyer on a short leash (no matter what type of divorce you choose that involves lawyers)! But it is very difficult to accomplish since you’re depending on them for advice and direction too.
So, what happens when things go wrong? How can disputes be resolved? You must find out all acceptable avenues to pursue in the process before signing the contract. For example, in a non-collaborative setting, you may each hire a lawyer and begin a negotiation for a settlement. However if there is not an agreement, then a mediator may be an option or possibly a private judge can be hired to essentially hold a small private trial to resolve an issue that you simply cannot agree upon with each other. Will your collaborative lawyer allow this? Remember that the collaborative lawyer holds extra power over you since, if the process fails, you waste all of your time and money with them. Finding out exactly what means for dispute resolution are available a priori is therefore essential. Or if you start a collaborative process, get some groundrules agreed to in writing (like ability to hire private judge to clear a log-jam) at the start of the process to avoid getting hooked in too far in terms of money and time before considering bailing out if such dispute resolution methods are rejected by one of the lawyers.
In my case, my wife received a “Handbook for Clients” which stated clearly that if the process was deadlocked on one or two points only, then a private judge could be hired to resolve the points. However, when it came to exactly that situation, I was told by my attorney that both lawyers would have to drop out if a private judge was requested since a mini-trial of the sort would “not be collaborative.” We were stuck without an option that appeared to be available at the start. Get it in writing. Try to agree with your spouse about what to do in case problems develop before the lawyers possibly make you turn on each other. There are no guarantees since anyone can drop out anytime, but at least you’ll have a more solid footing.
If you are planning worst case, then plan for the process to get deadlocked and outside help being required. Do this by agreeing on where that help will come from before starting the meetings/negotiations. In my case, when we were deadlocked, the lawyers tried to bring in a “meta-mediator” (whatever that means) from a list of lawyers in their own collaborative group. In other words, we were only allowed to work with a mediator that had a social and business relationship (through mutual promotion on the law group materials/web site) with the attorneys (For the record, my attorney was open to using the services of someone outside the collaborative group to his credit) . Googling the suggested lawyers brought up a horror story about one of them and the costs of the meta-mediation was not represented accurately. Arguments of conflict of interest were ignored by my wife’s attorney (and accepted by mine). When I tried to bring in another person as a private judge, someone with an impeccable reputation and over 50 years experience in the State Bar, he was rejected outright by my wife’s attorney as “not being collaborative”, even though he had done collaborative cases and my wife’s attorney had never met the man. In my opinion, this was a smokescreen to obscure that my wife expected to have a worse result under scrutiny of an outside party, however qualified. The mediation never took place. I suspected it was just another step in churning the case as well while not really allowing much chance for resolution since there was no binding aspect to the result anyway. A binding result was prohibited by both of our attorneys, saying it was like a “mini-trial” my lawyer said he would have to withdraw. Justice.
In summary, find out what means you have for dispute resolution ahead of time, including who is acceptable to bring in and who is not. If there is resistance for bringing in any outside party who is qualified, then don’t enter into the contract.
WHAT IS YOUR LAWYER’S STRATEGY?
This may sound out of context, but it is an important question that can probably be answered by some initial consults. In a true collaborative process, there are only reasoned arguments and there is not, in theory, a tricky strategy to overcome your spouse’s interests! In my case, my attorney appeared to try to follow the collaborative ideal, but he was “outgunned” by an opposing attorney that, in my opinion, violated in the letter and spirit of the process in many ways, thereby making the process untenable. If your initial consultations with a collaborative attorney reveal a strategy that is based on maneuvering, threat of court, or any other such malicious acts, then why are you entering a collaborative process in the first place? A collaborative attorney suggesting strategy like this will cause YOU to look like you’re insincere in the whole process and it will potentially make the process break down since trust is again lost. My attorney also mysteriously suggested that we “declare” to the other side that we are not proceeding collaboratively only six weeks into the process. I did not agree, but this is a very risky path, since it essentially gets the lawyers off the hook for following the contracts that were signed at the beginning. A strategic approach may be perfectly suitable in some cases using traditional lawyers (not collaborative), but it is out of context in a collaborative setting. Therefore, if your lawyer has such a strategy, they are being insincere with you and corrupting the process you were pitched in the first place. Leave that lawyer behind and find one that truly believes in the process, or take the strategy and go to a regular lawyer to get a divorce. At least a regular lawyer will be above board (with you) on strategizing. Note that in a collaborative setting, if you are developing secret strategies or tricky moves, you’ll likely anger your spouse even more than in a regular case given the expectations set up in collaborative with respect to honesty, reasoned negotiations, etc.
It may be very hard to reveal your lawyer’s strategy in advance of entering the contract, so it is always best to get recommendations from other clients of the attorney or friends to be sure the attorney pursues a strategy you can live with.
If your lawyer says that you can get whatever you want from your spouse due to some loophole in the legal system or imbalance in power, be sure you understand how that will affect your future relationship with the spouse and how you might feel about the ethics of pursuing such a strategy. As above, also beware that such a strategy is not collaborative at all, and following it may risk the success of the collaborative process and cause more acrimony with your spouse.
All collaborations require negotiation on some level. In fact the Principles and Guidelines given to us in our divorce stated explicitly that the parties shall engage in “good-faith vigorous negotiations” to reach a settlement. When the time came to start the negotiation on our big conflict point, I felt that my wife’s attorney refused to negotiate and described every attempt by me to do so as “not collaborative”, the favorite catch words of the unscrupulous CL attorney. Here are some examples of blocking a sane negotiative process:
If you’re considering a CL divorce, you are on decent terms with your spouse or at least you mutually agree that you want to avoid a war or costly public court case. So, what about the costs of the divorce itself? This should be discussed before hiring lawyers! It is not uncommon to ask attorneys to charge equal rates for the two of you so that you are on more of a level playing field. You could agree to pool costs and split 50/50 at end so neither spouse has an advantage or motivation to use more/less resources. Important in some cases, when there is a mismatch on the net worth of the spouses, is who will pay the fees, since in court, the party with less income or savings can potentially ask the other party to pay their fees. Clearly this is an emotional topic that can cause many problems in the settlement. If you have absolutely no control over your spouses expenditures on legal fees and you have no means for arbitrating them (if you feel there is negligence), then being asked to pay such fees will not feel good.
Given that the Guidelines for Collaborative Divorce (See Links) talk about fee parity between the spouses, this should be discussed before signing the contract, if you go that route. In the Author’s case, this was overlooked and there was a discrepancy between the fees for the two lawyers, and neither of the lawyers ever mentioned the fee parity issue to us, even though it was in the printed materials.
CONSULT FRIENDS AND ACQUAINTANCES
Chances are that you know one or several or a hundred people that got a divorce! Given that the marriage failure rate in the U.S. tops 50%, there are a lot of split up couples out there. Each has experienced some kind of divorce proceeding or negotiation and if you can survey them for their experiences, you can possibly get better perspective about your own situation. Try to get real case experience from divorced people and avoid advice from “the man on the street”, like “He/She left you so he/she shouldn’t get anything!” statements, which may be far away from what the state law provides. Getting opinions from several lawyers may also be helpful in calibrating your plan of action and certainly, as the books on the subject recommend, interview several lawyers before committing to one. Any advice you get in terms of the experiences of others will better prepare you to deal with what lies ahead.
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