Second, the process is based on “transparency.” Everyone agrees to exchange all relevant information and all experts are neutral. There is no need for formal expensive discovery requests and hearings to obtain information. All relevant information is readily and quickly disclosed. In traditional litigation an enormous amount of time and money is usually spent gathering information that is often not readily forthcoming. The information is almost always finally obtained after months and months of effort. In the Collaborative Divorce Process, it is fundamental that no relevant fact or data is hidden. This is only a problem for those spouses who want to be dishonest. A spouse who wants to be dishonest is free to go the traditional route and spend tens of thousands of dollars trying to be secretive, which will 95% of the time backfire on them after great expense. “Transparency” is critical to the Collaborative Divorce Process. A spouse may despise the other spouse, but still must be willing to be honest. In the future, traditional litigation will only be used when one of the spouses wants to be dishonest – a telling sign for disaster.
Third, the focus on reaching an agreement is based on “interest-based” negotiations, seeking creative solutions that work for the entire family, not necessarily based on the rule of law. Interest-based negotiations identify the real priorities and interests of each spouse, the needs of the children, and the common goals for the family. The negotiations encourage empathy and acknowledgment that the parties may need to be connected well into the future. Interest-based negotiations seek creative solutions to satisfy the parties’ common goals and adverse interests, irrespective as to what the law may otherwise provide. Judges are bound to follow the law; they only have discretion in determining the facts to apply to the law. The law, however, is not fact specific. The law when applied to unique situations is not always fair or does justice. Thus, the law is often irrelevant in interest-based solutions. Interest-based negotiations recognize the uniqueness of every family and that the legal solution for one family is not appropriate for all families.
The Collaborative Divorce Process is also very structured. At the initial joint meeting, the spouses and participants sign a “Participation Agreement,” which sets forth the goals, rules and processes to be followed. Collaborative Divorce involves joint meetings with all participants following a specific agenda. The joint sessions are followed up by debriefing meetings between the attorneys and professionals. A Collaborative “Team” is created, consisting of the parties, their respective attorneys, and the neutral professionals.
Typically, the most common neutral professionals are financial experts (CPA’s; financial planners) and a qualified mental health facilitator. As with the attorneys, these neutral professionals should be specifically trained in the collaborative process as their roles completely differ from traditional litigation.
Many spouses wonder why a mental health professional is even needed as part of the Team. However, the mental health professional plays a very important key role in the success of the collaborative process as they are the Team’s process facilitators. Although trained and licensed as a mental health professional, including collaborative training, this professional is often referred to as the Team’s Neutral Process Facilitator. The mental health professional does not act as a therapist treating the spouses. Rather, they use specific unique tools for emotional regulation, keep the focus on the enduring needs of all family members, focus on short-term interventions and keep the Team in the process toward a joint solution. They attend all joint meetings, set the agenda, set up the dynamics of the room, manage the emotions during meetings, assist in developing a co-parenting relationship, and offer creative solutions. The list of the value of a mental health professional is endless. Divorce is a major, emotional change in life, regardless as to whether the spouses are cooperative or at war. The mental health professional will listen to each party’s story, make referrals when necessary, and help the process move forward whenever it seems to stall. In the debriefing meetings, the mental health professional summarizes what went well, what did not go well, and provides constructive feedback on the how to move forward. The role of the mental health professional in the Collaborative Divorce Process is perhaps the biggest distinction between collaborative and traditional litigation. There is no equivalent process facilitator in the court litigation system, which is one to the greatest flaws of the court litigation system.
Other possible neutral professionals may include child specialists, corporate, tax, and estate attorneys, business and real estate appraisers, and insurance consultants, as well as others. While these other professionals are not always needed, the concept of all neutral professionals as Team members is to have the most qualified neutral professional doing what he or she does best when such services are needed.
So, you ask, “How is all this cheaper and less stressful than traditional dissolution of marriage litigation?” Good question! Let’s compare the two. Litigation is based on a blame game and is demoralizing, dehumanizing and generally destructive to families. It breaks families apart but offers no solution for healing and recovery. Litigation gives 100% of the power of resolution to a third party (Judge), who knows nothing about the true dynamics of the family, except as to the conflicting facts presented, often by biased conflicting witnesses and experts, at trial. Judges determine parenting plans and economics only. They do not resolve emotions or relationships. No judge has ever enhanced a relationship between divorcing couples. Collaborative Divorce, on the other hand, concentrates on how to solve problems, not who is at fault for them, and the spouses themselves, with the aid of their attorneys dedicated to resolution as opposed to judicial persuasion and truly neutral professionals, maintain 100% of the power to decide their own outcome. Collaborative Divorce can assist with the emotional aspects of divorce and can enhance the future relationship of parents who have children. It empowers the spouses with the tools and ability for healing and recovery.
Litigation is adversarial in nature. Attorneys attempt to marshal the facts in favor of their clients and attempt to persuade the judge to find in their respective client’s favor. In the Collaborative Divorce Process, attorneys, while remaining advocates for their clients, are more concerned with reaching an agreed resolution that solves problems, not exacerbate them.
Most litigation cases involve multiple pre-judgment hearings before the judge, a long expensive discovery process, and ultimately preparation for and attendance at trial. Typically, a contested divorce will take 17 months (often longer) from filing to final judgment. In the Collaborative Divorce Process, there are no court hearings, discovery is quick and easy, and there is no preparation for or attendance at trial. Typically, a Collaborative Divorce will take about 17 weeks from inception to agreement.
When experts are needed in traditional litigation, each party usually hires his/her own experts, and the litigation experts are not neutral, but rather biased in favor of his/her client. The experts in Collaborative Divorce are not only specifically trained in the collaborative process but are also trained as neutrals.
All attorneys and experts bill by the hour. Because significantly many more hours are spent in traditional litigation than in the Collaborative Divorce Process, the Collaborative Divorce Process is usually much less expensive.
I am absolutely convinced that the Collaborative Divorce Process is far superior to the traditional adversarial litigation process. It is better for the parties; it is less expensive and time consuming; and it is the wave of the future.
I am a Florida Bar Board Certified Family Law attorney, which allows me to represent myself to the public as an expert and specialist in family law. I offer roughly a 20% discount off my standard hourly rate for Collaborative Divorce clients. If you are interested in Collaborative Divorce or if you know someone who may be, please contact or have them contact my office for consultation 954-768-0720.