By B.C. Manion
Is it really possible to have a civilized divorce?
The answer to that is – yes – if both parties are willing to agree at the outset that they and their attorneys will work as a team to settle, not litigate, their divorce, said attorney Stu Webb.
Webb, an attorney from Minneapolis, Minn., is the man who started the collaborative approach to divorce two decades ago.
Webb said he came up with the idea after litigating family law cases for about 20 years.
“The litigating system takes a lot out of everybody,” Webb said. Parents and children aren’t the only ones who get stressed out, he said. Judges and attorneys do, too.
It got to the point that Webb thought about quitting, but upon further reflection decided there must be a better way.
“On Jan. 1, 1990, I declared myself a collaborative lawyer,” Webb said. At the time, he was the only one.
So, he began recruiting other attorneys who would be willing to try a new approach that would change the role that lawyers played in divorce cases.
It turns out, Webb said, the collaborative approach appealed to other attorneys, too. “I wasn’t alone in having that feeling that “I can’t do this anymore.’ ”
With Webb’s model, instead of battling each other, attorneys and clients agree to work together as a team to reach a settlement.
Each attorney is there to represent the interests of his or her client, but from the outset everyone is committed to settling the case, said Ron Ousky, an attorney from Edina, Minn., who, along with Webb, co-authored “The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids.”
If the settlement falls apart for any reason, both clients must find different attorneys to represent them in divorce court, Ousky said.
Ousky said he began practicing collaborative law because he had become increasingly frustrated by the damage done during traditional divorce cases.
Collaborative divorce is more than just being nicer to each other while working out a settlement, Ousky said. “It’s about getting higher quality agreements that will last over the years.”
Collaborative divorce also is completely different than mediation, added Pauline Tesler, an attorney based in Mill Valley, Calif., who is perhaps the most experienced trainer in the field of collaborative law.
Mediation uses a neutral third party, while each party has an attorney in collaborative divorce.
With collaborative divorce, “your lawyer is by your side at the core of the negotiation,” Tesler said. “You’ve got two trained problem solvers in the room,” she said, referring to the attorneys. “You get a lot of creative brain power.”
While still largely unknown to many people, the use of collaborative divorce is gaining acceptance, said Talia Katz, executive director of the International Academy of Collaborative Professionals, based in Phoenix.
Her nonprofit organization began with about 50 members a decade ago. It now has 4,300 members from 24 countries. The group’s annual conference, which will be held this fall in Washington, D.C., is expected to draw 700 practitioners.
Wesley Chapel attorney Don McBath has embraced the approach as an avenue to achieve a fair resolution for all.
The approach represents a total departure from McBath’s old attitude, when he gloried in a win-at-all-costs approach to gaining custody of children for his clients.
“I was a monster. I was notorious. I was one of the nastiest divorce attorneys in Tampa Bay,” McBath said. “Looking back, I helped gained custody for people who really shouldn’t have gotten custody and I feel bad about it.”
Now, McBath’s focus is on helping divorcing couples to end their marriage in a way that is fair to both parties and prevents children being used as pawns.
“Divorce is an emotional issue, no matter how you cut it,” Katz said. “It is much than just a legal event,” Katz said.
Collaborative divorce, she said, is essentially a “commitment to problem solve.” It’s also a decision to avoid a court-ordered decision, she said. “It’s all about client self-determination.”
Another advantage to the approach is that a settlement spells out exactly what each party can expect, Ousky added. “If you leave it up to a judge there is always a lot of uncertainty about what is going to happen.”
Besides the two attorneys and the divorcing spouses, the team can involve other members as well, McBath said.
Team members can vary from case to case, but generally include a mental health professional to help spouses manage their emotions, a child specialist to help the parents work out a plan for the children and an expert to help sort out the finances.
About 84 percent of the collaborative divorce cases handled by members of Katz’s organization involve families with children; of those, roughly 71 percent were families with minor children.
About 90 percent of the collaborative cases end in resolution, according to the organization’s internal study. In about 60 percent of the cases, the resolution was made within 12 months.
In collaborative divorce, the parties set the pace for the settlement, Katz said. “They’re not waiting on hearings, court dates.”
While conventional divorce generally is adversarial, collaborative divorce requires an ability to put aside hostility and to work jointly to resolve issues.
The option isn’t the best choice for everyone, McBath said.
If spouses can no longer agree to anything or are not even on speaking terms, they would not be a good fit for collaborative divorce, McBath said.
By creating one team, everyone is working together – to resolve issues, McBath said.
“There’s a pledge, from the very beginning, that we are going to settle this case,” McBath said. “We’re not trying to beat each other up. It doesn’t become a battle of the experts,” McBath said.
“Everybody has got to be honest in this venture and has to be sincere about wanting to settle this thing fairly,” McBath added. “It’s not going to work if you’ve got people who are selfish and who are thinking only about, ‘How can I get out of this thing and get the most that I can?’ ”
Is collaborative divorce right for you?
If these values are important to you, collaborative divorce is likely to be a workable option for you:
* I want to maintain the tone of respect, even when we disagree.
* I want to prioritize the needs of our children.
* My needs and those of my spouse require equal consideration, and I will listen objectively.
* I believe that working creatively and cooperatively solves issues.
* It is important to reach beyond today’s frustration and pain to plan for the future.
* I can behave ethically toward my spouse.
* I choose to maintain control of the divorce process with my spouse, and not relegate it to the courts.
Source: International Academy of Collaborative Professionals
