By Shawn Weber, CA State Bar Certified Family Law Specialist
Past President, Collaborative Family Law Group of San Diego
Board Member of Collaborative Practice California
My life as a family law attorney changed with my first Collaborative Practice case. I was moved by the idea of leaving the adversarial process that I found so harmful to families and children and engaging in the solutions-oriented, mutual and respectful collaborative model for families transitioning through the divorce process. I had seen too many situations in court where I felt we were doing more harm than good. While litigation is necessary for some, Collaborative Practice is a powerful tool to reduce the serious pain and collateral damage, from which families suffer in court.
In a collaborative divorce, both parties retain specially trained attorneys. Other professionals, including coaches, financial specialists, therapists and child specialists, are called upon to join the team and offer their unique expertise.
An important distinction of collaborative divorce is the agreement that the attorneys and other experts make to resign from the case if it veers toward litigation. This ensures that all who are involved are committed to a nonadversarial resolution of the case. I love that it frees me, the attorney, from the temptation to posture and spin and moves me into a mode where I am working with the other professionals across varied disciplines to find solutions.
Since my first Collaborative Divorce case, I have learned a lot about what works and what doesn’t work. Following are my top nine tips for success in a collaborative divorce.
1. Use a full team model. It can seem daunting to think of adding multiple professionals to one’s divorce case. A full collaborative divorce team would be a coach for each party, two attorneys, a child specialist and a financial specialist. There is a temptation to think, “I don’t need all of these people.” Sometimes people fear that having a full team is cost prohibitive.
In reality, the different professionals bring efficiency through specialization. In other words, you aren’t paying an attorney at his higher rate to do mental health work that he is less qualified to do. Rather, you pay a mental health professional to provide coaching services with much greater skill. Use a qualified and well-trained accountant or financial planner for financial work. Specialization gives you a better product more efficiently obtained.
The shortcut of only using attorneys may seem cheaper or less complicated in the short-run. But in the long run costly mistakes can be made. The coaches and child specialists are excellent in helping parties and parents focus on the important things in the divorce process rather than on the “emotional noise” that is ever present in every family law case. Financial specialists are adept at watching for costly tax planning mistakes. They do a tremendous job of making complex financial issues more accessible. Going into a collaborative case with only part of a team is like mountain climbing with only half of your gear. You might be able to get to the top of the mountain, but it will take longer and be a more miserable journey. You might not make it at all. So, be sure to have all the tools available.
Once you have your team in place, make sure you use your team members. Use the coaches to help when things are emotional. Use the financial specialists to figure out the money. Use the child specialist to make sure that your kids are OK. Don’t set up the team and then not use it. It’s like filling up a tool box with a full socket set, but only using one wrench.
See “Collaborative Practice Saves Money” by attorney Sandra Joan Morris.
2. Make sure that you are working hard. Getting divorced is very hard work. I advise my clients that they will work harder than they ever have at anything in their lives. Divorce is complicated and extraordinarily emotional work. You will get a lot of homework to complete between collaborative meetings. This may involve producing financial records or learning how to work out parenting disagreements with the other parent. Just sitting in a room and trying to be constructive with a spouse you are divorcing can be exhausting both emotionally and physically.
I can predict failure in a collaborative process when I am working harder to settle the case than my client. There should be no illusions. A lot will be asked of you. Don’t expect your team of professionals (as capable as they are) to do all the work for you. Ask often what you can do to move the ball down the field.
3. Get your homework done on time (maybe even early). You will be given assignments between sessions like gathering financial data, preparing forms or working with your children. If the homework required for a scheduled meeting hasn’t been done, the meeting will be a waste. Your divorce will take longer. If you get your tasks completed on time, or even early, the meetings will go smoothly and your case will likely conclude on time.
4. Disclose Everything. That we are trying to be more informal and friendly does not relieve you of the responsibility to be completely truthful and open. The legal requirements for disclosure remain whether the case is collaborative or litigated. That means you disclose everything. That’s EVERYTHING.
Trust is the great lubricant of settlement. Collaborative practice relies on mutual trust and consensual resolution making openness essential. Completing the financial disclosures on time enables better trust. Without trust and openness, you probably won’t be able to settle and you will end up in court. Besides, the law is very clear that disclosure is required. Suffice it to say that the California Courts have broad power to punish a non-disclosing party. (For a primer on California’s strict disclosure rules, click here.)
5. Be patient. You will not solve every issue in your first meeting. The first several meetings often only set the stage for settlement later. There is a reason for this. Information needs to be gathered. Emotions need to be controlled. Children’s concerns need to be addressed. Divorces are complicated with many legal issues and difficult emotions. If you are patient, stick to it and rely on your team, your chances of success increase.
6. Relax and don’t panic. Legal disputes are frightening. Legal disputes about your family are paralyzing. Sometimes individuals succumb to “fight or flight,” that tremendous adrenaline response that saved our ancestors from being eaten by the saber tooth tiger. That’s great when you are trying not to be eaten. It’s not so great when aiming for a peaceful settlement.
When things get difficult, it’s easy to panic and run to court. Instead, engage your team when things get difficult. A skilled collaborative team can help you find a solution to a difficulty much faster and more creatively than court ever could.
See “The Emotional Roller Coaster of Divorce” by Pauline H. Tesler, M.A., J.D., & Peggy Thompson, Ph.D.
7. Talk Less. Listen More. To find a settlement, it will be important to hear and understand what your spouse is saying and feeling. You should get your story out. But don’t do it at the expense of missing your spouse’s point of view. Looking at the world from your spouse’s point of view will help you find a solution that works for both of you.
Importantly, don’t forget to listen to your professional team. They have been through a lot more divorces than you and will have suggestions that you may not think of on your own. Take time to hear and internalize what is being said.
8. Don’t think win or lose. Focus on solutions. The terms “justice” and “fairness” mean different things for different people. You don’t have to win everything. Divorce doesn’t need to be a competition. Rather, divorce presents problems for which there are solutions. The challenge is to find the solutions.
Instead of “fairness” or “winning,” try to make good business decisions. Settling your case is its own victory. Taking the decision away from a judge and keeping it with the parties is empowering. Ending conflict is liberating.
9. Have an open mind. It’s easy to get locked into preconceived notions. In all collaborative practice cases, time is spent brainstorming to find creative solutions. In brain storming, there are no bad ideas. It’s a great way to find many possible and more creative options.
One old parable involves two women fighting over an orange. Foolishly, the two women simply cut the orange in half to settle their dispute without considering what each wanted from the orange. This was a poor solution as it failed to address each woman’s real interests. One woman wanted to use the zest while the other wanted the pulp for juicing. Had they sought a solution that truly addressed their needs rather than taking the most obvious option, they would have found a better way.
Collaborative Practice takes openness, hard work and a good team. Collaborative Practice helps people move forward with dignity. The strategies listed above can help you to successfully settle in a respectful and dignified process. Here are some links with more information about collaborative practice:
Why I absolutely love Collaborative Divorce
Collaborative Family Law Group of San Diego
Collaborative Practice California (CPCAL)