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The Minimally-Invasive Divorce
Curtis W. Harrison | November 10, 2014
Over the last 25 years Americans have been on the cutting edge of advancements in medicine. 25 years ago a back surgery required long hospital stays, metal plates, and months of recovery. Today, surgeons deliver “minimally-invasive” procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? More particularly, why do so many people still rely on stone knives and bear skins when getting a divorce? The court system simply was never designed to resolve the increasingly complex dynamics of family conflict.
Even in bitter divorces husbands and wives usually want to do the right thing. They just disagree about what the “right thing” is. But our judicial system, by its very nature, creates only two types of participants: Winners and Losers. That type of system usually serves the public interest well in matters of criminal acts and contract disputes. However, when dealing with the disintegration of a family unit, both participants have already lost before they ever step into the courtroom: Two people who once loved each other enough to get married in the first place have failed in their marriage. Their children are in turmoil, and their finances are strained, if not in complete ruin. And thanks in large measure to the law’s “one-court-fits-all” approach to divorce, the spouses often feel compelled to hire professional gladiators to annihilate the other person. Whether they actually wind up trying the case to a judge or jury, or settle on the courthouse steps, no one has been spared the emotional or financial devastation of the experience.
What is Collaborative Law?
Thankfully, there is a minimally-invasive procedure that is revolutionizing the way couples dissolve their marriages. Collaborative Law is the 21st Century’s cutting-edge alternative method of resolving such disputes without the use of a judge, jury or even a courtroom. This unique approach allows the participants and their respective attorneys to meet privately and work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner.
The Collaborative Law model transcends traditional notions of mediation and actually represents a complete paradigm shift away from litigation. The threat of the courtroom is effectively eliminated at the very beginning, for the participants and their attorney sign a written contract, called a “Participation Agreement,” which serves both as a rule book governing the conduct of the participants and also as a commitment to keep the case out of the courtroom. In effect, the lawyers are barred from the courtroom! And if either party later reneges on the agreement, the “damages” clause of the agreement requires that both attorneys withdraw from the case. While this might seem a strange notion, it actually serves as the Super Glue that keeps the case moving forward collaboratively — even when the going gets tough.
The signing of the Participation Agreement and the contractually agreed-upon boundaries that are put in place as part of it serve to promote a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues that must be addressed and resolved as part of any divorce. During this process, a full range of jointly-engaged neutral professionals, including communication coaches, financial consultants, estate planning professionals and others can be called upon if needed to provide information and options for specific situations. The participants themselves, with the counsel of their respective attorneys, determine whether and when to involve such neutrals. Once a final agreement is negotiated, the lawyers jointly draft the final documents and file them with the appropriate court for approval.
The Professional Team
Collaborative Law attorneys take on a particularly interesting role in this process. They shed their gladiator’s armor and take on the role of “settlement-only specialists,” a phrase coined by the model’s creator, Stuart Webb. As he puts it, the collaborative lawyers are attorneys who work with the couples outside the court system. They turn the case over to trial lawyers if and only if the settlement process fails.
While the attorney-client relationship remains wholly intact and the attorney still advocates on behalf of the client, the positional, adversarial elements are abandoned and replaced with a cooperative, interest-based approach to negotiations. The metaphor I typically use when describing the model to my clients is this: Traditional litigation is like a game of poker. Each party is dealt a hand of cards and the object is to beat the other player by hook or by crook. But in a collaborative case, everyone lays his or her cards face-up on the table. Then we move the cards around to make the best possible combination for both players with the cards that are available.
One of the many unique aspects of the collaborative model is that experts are jointly engaged by the participants to provide specific professional services during the case instead of each party hiring her or his own expert. While there are numerous types of experts, including child specialists, tax consultants, and business appraisers, the two experts most commonly employed for a case are the Mental Health Professional and the Financial Consultant.
The Mental Health Professional (also known as the “MHP” or “Communications Coach”) provides a broad range of services to the participants and the attorneys, including all of the following: Helping the participants to frame their points constructively; monitoring and managing stress levels both during joint sessions and during offline meetings; and guiding the often difficult discussion regarding the parenting plan for the children. As a fringe benefit, the participants frequently acquire more productive communication skills modeled by the MHP and other professionals throughout the case, which can serve them long after the divorce is over. Finally, many collaborative professionals have also found that the MHP makes an effective discussion leader during the joint sessions, since experience has shown that participants tend to feel more comfortable having a neutral “run the show.”
The Financial Consultant (also known as the “Financial Neutral”) is tasked with gathering, organizing, and presenting the participants’ financial information to the team in a way that enables the participants and the attorneys to understand it and act on it. As Pauline Tesler wrote in her book, Collaborative Divorce, the Financial Neutral “educates you about financial matters and planning; identifies issues that will need to be addressed by other team members; and helps develop and evaluate settlement scenarios in collaboration with [the] lawyers.”
While the neutrals are often indispensable to a successful resolution of a collaborative case, they are not mandatory. The participants, working in light of the recommendations of their respective attorneys, ultimately determine who will be needed and who will not. And, just as the lawyers must withdraw in the event the process is unsuccessful, so too must the neutrals withdraw. Similarly, they cannot serve the participants in any other capacity in the future.
Why It Works
There are two fundamental reasons why Collaborative Law works as an alternative to litigation: Collaborative Cases (a) We negotiate interests instead of positions; and they are a (b) Better Value.
We Negotiate Interests Instead of Positions
Attorneys are trained advocates and negotiators. We like to debate and we like to win. Whether it is in the courtroom or at a conference room table, we know what our client wants and our job is to help her or him get it: “My Client wants the kids, the house, and the 401(k). Your client can have the boat, the note, and the girlfriend.”
That kind of proclamation is very positional. Positional negotiation is the standard model in litigated cases. In order for one party to get what she or he wants, the other side has to lose it. It is often guided by feelings of betrayal or anger based upon the past conduct of the other party.
By contrast, collaborative professionals shift the focus, the discussion, and the negotiation to the future. Great attention is paid to discovering the “why” behind the positions: Why do you want the kids? The house? The 401(k)? In this example, as the professionals and the participants continue to dig beneath the positions, perhaps they collectively discover that the “why” has more to do with protecting the children’s school schedule than actual physical possession. The house is the only home the children have ever known. The 401(k) represents long-term financial security.
Once the team uncovers the participants’ true interests (aka the “why”) then everyone is free to unleash their imaginations to develop and evaluate options you would never see in a courtroom. Ultimately, a solution can be achieved that more effectively meets the interests of both participants.
It is frequently stated that about 95% of the divorce cases that get filed state-wide ultimately resolve without a contested final trial. Yet since attorneys cannot predict which 5% will go to trial, the attorneys must dutifully spend some portion of their time preparing all of their cases for a trial that will probably never happen. That means that 95% of the divorcing universe is wasting some portion of their money, since they are being denied a trial for which they have already paid.
Conversely, whether the participants are working on a parenting plan, a business valuation, or the division of unsecured debt, 100% of every dollar the clients spend in a collaborative case is dedicated to the goal of settlement. The participants quickly see that they are getting a better bang for the buck in the collaborative model than in traditional litigation.
What Clients Are Saying About It
The best evidence for the success of the collaborative model comes from those who have actually gone through it. Stuart Webb wrote that “[t]he majority of the couples who go through the Collaborative method come through the process satisfied with the results.” Why? The answer is so simple it can be difficult to accept:
It gives the couple greater control over the outcome of their divorce; resolution is generally less expensive and quicker than going to court; it benefits the children by keeping them out of the controversy; and it helps the couple to maintain a sense of integrity and respect, which is often a priority when children are involved.
The results are coming in across the nation and even beyond our shores. People faced with a divorce are choosing Collaborative Law increasing numbers and most have very positive things to say about after-the-fact. Perhaps the best evidence for the success of the model, however, is the fact that there is rarely a need to file a subsequent enforcement action regarding the divorce decree since participants are usually more apt to follow rules that they themselves have created.
Of course, Collaborative Law is not a magic potion. It is not going to be a fit for everyone or every case. The model is probably not well-suited for cases involving substance abuse, domestic violence or other abuse, a history of intimidation or manipulation, or a history of mental illness. Some have also suggested that Collaborative Law divorces are not adequate to deal with a party who is willing to lie or conceal matters of substance. Of course, as Paula Tesler notes, litigation doesn’t make a liar honest, cure an addict, or make an immature spouse grow up.  Perhaps the real question in such cases then should be, “Do you want an adversarial divorce that tends to bring out the worst in most people, or a collaborative one, which may or may not be able to bring out the best in you and your spouse (but which tries to do so in ways that have worked for others)?” Put another way, do you want a minimally-invasive divorce using the most advanced tools and procedures available today? Or, would you prefer to stick with the stone knives and bear skins? Perhaps the answer to these questions can best be summed up as follows: “Those who want to fight and punish someone don’t go the collaborative law route– they go to court.”
 Janet P. Brumley, Divorce Without Disaster: Collaborative Law in Texas 32 (PSG Books 2004).
Id. at 37.
 Kim Munsinger, Have You Heard About Collaborative Law? San Antonio Lawyer, Sept. 2010.
 Stuart G. Webb and Ronald D. Ousky, The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids, Without Going to Court , xv (Hudson Street Press ed., Plume Books 2006).
 Pauline H. Tesler and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, 47, (HarperCollins Publishers, 2006).
 Stuart G. Webb, The Collaborative Way to Divorce xiv (2006).
 Id. at xiv.
 For a listing of several representative quotations from various participants over the last few years, please see the attached Appendix “A,” provided courtesy of the Collaborative Law Institute of Texas.
 Id. at 25.
 Pauline Tesler, Collaborative Divorce 35.
 Id. at 36.
Janet P. Brumley, Divorce Without Disaster 48 (2004).