The collaborative process for divorce builds on mediation as an alternative to traditional adversarial divorce in that attorneys try to help clients amicably reach agreement, but it is notably different from mediation in that the conversations to try to reach agreement are held in four way meetings between attorneys and parties vs 3-way meetings with a mediator and the parties. When impasses arise, outside experts (typically financial or child specialists) may be used; some collaborative attorneys encourage clients to use experts early in the process to avoid impasses (see our Divorce Expert-Team Approach for an integrated collaborative model that involves all relevant specialists from the start).
The most unique feature of the collaborative process is the signing of the collaborative pledge, in which divorcing spouses and their attorneys all agree that the attorneys are disqualified from going to court. This disqualification removes the process from the adversarial court system, the theory being that removing the threat of contentious litigation will take the fear, hostility, and negativity out of the negotiations and instead allow parties to utilize non-adversarial conflict resolution and interest-based negotiation to come to a fair settlement agreement.
Many traditional/adversarial attorneys will say, when asked if they do “collaborative divorce,” that they do “collaborative,” but they may simply mean that they are willing to avoid adversary and try to work amicably; however, it is not truly collaborative divorce unless parties and attorneys sign the collaborative pledge, so a better question would be at ask an attorney if they sign the collabortiave pledge barring themselves from representing you in litigation. Another good question to ask is what specific training the attorney has had in collaborative divorce and alternative dispute resolution. Collaborative divorce minimizes or eliminates the negative consequences of adversarial litigation in the family arena by:
- avoiding litigation and lawsuits
- coordinating problem solving
- minimizing conflict between separating/divorcing individuals
- providing legal representation to each individual
- assisting couples in making sound and thoughtful decisions about the future for themselves and their children
- minimizing the expense of divorce
- addressing short-term and long-term financial concerns
- jointly retaining experts as needed (for example, financial specialists and child specialists)
- protects families from unnecessary resource depletion
Studies show that a collaborative settlement is reached faster than settlement in traditional divorce negotiation and greatly reduces the emotional trauma families experience in divorce, especially children.