A Kinder, Gentler Approach to Divorce

"Robin Williams and Wife to Seek Collaborative Divorce"
(Headline in Variety)

For better or worse, it usually takes a celebrity to get the general public to notice a particular issue or phenomenon. In the case of collaborative divorce, which has been around in some form for nearly twenty years, the ongoing Robin Williams divorce proceedings have transported the movement from the relative obscurity of law journals into the world of the tabloids. I think it will turn out to be a positive development.

Collaborative divorce is based on the premise that the litigation-based model is often counter-productive in divorce cases, especially cases involving children. Divorcing couples can spend tens of thousands of dollars---even hundreds of thousands of dollars---litigating issues that could have, and should have, been resolved with far less monetary and emotional cost. In addition to messed-up kids and damaged parent-child relationships, the residue of litigated divorce is usually bitterness and frustration. People out for blood never learn until the case is over that the courts can't give them blood.

In a collaborative divorce, the parties and their attorneys agree in writing at the outset of the case to freely disclose all pertinent financial information and other relevant facts; to jointly retain neutral experts (such as child psychologists) rather than "hired guns"; to conduct four-way settlement conferences in a civil and co-operative manner; and to refrain from litigating the case in court until or unless the collaborative process has totally broken down (at which point the original lawyers would withdraw, new attorneys would come in, and everyone would start from scratch).

Not every divorce lawyer is trained in collaborative techniques, and, indeed, some lawyers are opposed to the idea. A veteran litigation attorney may feel that litigation---with its relentless "discovery", its dueling experts, and its hard-hitting cross-examination---is necessary to get at the truth and produce a just result. I understand the thinking, but I don't buy it, at least not across the board. There's a proper place for both approaches. Even the most enthusiastic collaborative divorce lawyers recognize that some cases are unsuitable for the process, and probably need to be litigated. I'm talking about cases in which one person has habitually lied to or abused his spouse, concealed assets, engaged in mind games and power plays, tried to turn the kids against the other parent, or has otherwise acted in bad faith on a consistent basis.

But in cases in which the parties have at least some measure of goodwill towards each other and are genuinely concerned that the kids not be dragged into a lifelong psychodrama, collaborative divorce can be a realistic option.

Because I've discussed mediation in several previous blog articles, I should point out that there are similarities between mediation and collaborative divorce (mainly, an emphasis on resolving problems in a rational manner), but the two processes are not the same. A mediator is a neutral person; he or she can't offer legal advice or strategies to either spouse, and can't normally be a "hand-holder" for one spouse and not the other. A collaborative lawyer, despite the agreement not to litigate, is still a lawyer in every sense, with an ethical obligation to represent his or her client competently, to honor the attorney-client privelege, and all the rest. A client seeking a collaborative divorce needn't fear that it will be in any way a second-rate divorce.

If I were to get back into divorce work, I'd probably limit my practice to collaborative cases. Because the litigation model was the only model available when I started practicing in 1979, I learned it and I learned to accept its limitations. But I often thought that there must be a better way. Well, there is, and if you're seriously considering divorce you should seriously consider the benefits of collaboration.

(I want to thank Atty. Natalie Wright of Tucson, Arizona for helping to educate me about collaborative divorce. However, all opinions, examples, and recommendations expressed herein are my own).