by Michael Dwyer

Getting a divorce might seem more complicated now than it used to be. There are certainly more choices to be made on the front end. Should we use mediation? Or Collaborative Law? Or the traditional court system?

At the very moment when life seems to be falling apart, it is not easy to take the time you need to determine the best process for handling your divorce. But making a good choice will make the divorce process easier and usually leads to better results. It can make all the difference in the world.

In this entry, I will describe the most important positive features of the Collaborative Law process. (In a later entry, I will address reasons couples might elect not to choose Collaborative Law.)

If you’d prefer to talk through your options with me, I’d be happy to help you decide whether Collaborative Law is the right fit for your family. You can reach me at 503-564-0218.

1. Do you want to stay out of court?

Most couples that elect Collaborative Law express a desire to remain amicable. Divorce is tough enough, and they don’t want a war. First, and most importantly,Collaborative Law is a non-adversarial process. You and your lawyers do not go to court. The lawyers do not engage in verbal battles.

This is not to say there is no conflict, but the Collaborative Law process is designed to provide a non-adversarial way to resolve conflict. The process is designed to help the clients and attorneys remain respectful and cooperative.

2. Do you want a process that speaks to your needs and concerns?

The traditional family law system is based on law. Our legal system plays a vital role in the health of our community, but it does not have the ability to address non-legal factors. There is certainly no room in the traditional family law system for whether or not you feel the terms of the divorce are fair.

In Collaborative Law, the needs and concerns of each client and their children are directly addressed. There is an understanding that clients can only achieve a durable agreement (one they will not regret later) when everyone’s needs, hopes, wishes, fears and concerns have been understood, and integrated into the agreement.

3. Do you want an efficient process that minimizes fees you pay for attorneys?

In traditional family law, clients often complain about the time and money that gets wasted preparing for a trial that probably will never occur, because the lawyers usually settle cases late in the process before trial. The process is often full of small scale battles, even if the war never materializes.

In contrast, in Collaborative Law the parties are wholly focused on discussing settlement. There are no fights over pleadings, depositions, or battles to obtain documents. From the first session until the end of the entire process, in Collaborative Law participants devote all their time and energy to reaching a settlement.

4. Do you want an attorney with advanced settlement skills? 

Trying to reach a fair and just settlement is the sole function and purpose of the Collaborative Law attorneys. In effect, they serve as settlement specialists. The best collaborative lawyers have been extensively trained in negotiation, communications, and conflict resolution. The Collaborative Law process utilizes a method of problem solving that is similar to the model used by mediators.

5. Do you want an attorney focused on achieving a fair settlement for you?  

To make sure that the lawyers retain their commitment to resolving a divorce through settlement discussions, in Collaborative Law clients and attorneys agree that attorneys will be disqualified if the divorce cannot be settled and the clients have to litigate the case in court.

This disqualification provision is central to the Collaborative Law process. It means both the clients and attorneys refrain from using the threat of litigation to achieve settlement. While everyone understands that litigation will result if the case cannot be settled, the Collaborative Law process offers you an opportunity to reach agreement based on your mutual goals and best values rather than on the coercive power of law in the court system.

6. Do you want a safe and confidential process?  

In Collaborative Law, all settlement conversations are confidential. If the case does not result in settlement, at trial the parties and attorneys are not allowed to speak about the earlier settlement conversations. This provides a layer of safety so you can safely share ideas, potential solutions, and possibly your deeper emotional responses.

That’s another aspect of safety: emotional safety. In Collaborative Law, you may elect to have trained divorce coaches support you with the emotional and psychological aspects of the divorce. Many Collaborative Law attorneys are also better trained to support and understand your emotional responses during divorce.

7. Do you want a transparent process?

Clients often come to divorce not trusting their spouses. They need a process that will require openness and transparency. Collaborative Law demands full transparency. Clients must fully disclose all information about their finances and exchange all financial records.  

Attorneys also commit to transparency and fairness. With their clients’ consent, attorneys will not take advantage of another attorney’s significant errors. 

Instead, the error will be brought to the attention of the participants so an agreement is not reached by taking advantage of mistakes. This is in keeping with the goal of reaching a durable agreement that reflects the mutual needs of both parties.

8. Do you want the freedom to customize your settlement?

In the Collaborative Law process, governing law is a factor you can consider, but it is not the sole basis for reaching an agreement. Couples retain the freedom to create an agreement based on other factors that are important to them. Certainly, whether or not you feel the agreement is fair is one of the most important considerations. This factor is irrelevant in court.

9. Do you want to share an expert’s knowledge and opinions?

In Collaboration Law, the participants do not retain their own, dueling experts. If couples need experts to address issues arising regarding children or taxes or appraisals, they jointly retain experts in these fields. The experts become part of the collaborative team and work with all participants to resolve the issues. The experts’ information and opinions are shared and discussed.

10. Do you want to be the best co-parents you can possibly be?

Couples who wish to maintain a relationship after the divorce often elect the Collaborative Law process. The values and procedures that you both commit to in Collaborative Law provide an opportunity to achieve an amicable relationship after the divorce.

This is especially important for divorcing spouses transitioning to the role of co-parents. Changing from being marital partners to the business of co-parenting can be difficult. Anger, pain, grief, betrayal, mistrust, disappointment, confusion – all these are common feelings when a marriage ends. 

The transition to co-parenting is not easy. But a process designed for safety, trust, transparency, fairness, and attention to individual and family needs and concerns offers co-parents a chance to build their post-divorce co-parenting relationship on new, solid ground.

Is Collaborative Law a Good Fit for You?

After spending decades in the court system, I have dedicated my practice to serving divorcing families using non-adversarial processes such as Collaborative Law and Mediation.

I would be happy to discuss whether Collaborative Law is the right fit for you and your family. It is an important choice, and I want to help you choose wisely.