Divorce litigation is some of the most contentious and nasty fighting in the courthouse. Fueled by raw emotions and dealing with the most personal issues, the litigation process doesn’t always allow for the parties to do much other than trade punches as they plod towards an end. By its nature, the rules of litigation require the parties to accuse, position, deny and strategize with a goal towards winning each hearing and ultimately getting the most for themselves in the end.
What if there was a process that didn’t require posturing and the goal wasn’t always winning but getting the best result for the family to move ahead successfully after the divorce? Can parties get divorced without the process itself requiring allegations, accusations and distrust? Is there a way to avoid husband versus wife?
The answers to these questions are found through the Collaborative Law Institute of Illinois. (www.collablawil.org). Through a collaborative divorce, there is a better way to the same end. If the baseline is changed from wife versus husband to a joint approach, the parties are able to invest themselves in their future. The focus becomes on “how do we make this work?”, instead of “how do I win?” In fact, the actual divorce case is not even filed in the collaborative process until it is over and the parties reach an agreement.
The joint approach extends to the professionals involved as well. Often times in the collaborative process, besides each parties’ lawyer, there are trained mental health professionals who serve as coaches and deal with the emotions that sometime derail solutions. Parties can also rely on collaborative financial neutrals who assist with the finances, valuations and budgets. Child specialists are available for custody and parenting time. The parties surround themselves with a team that are all focused on a successful peaceful agreed upon dissolution.
The underlying principal in the collaborative team model is trust. As opposed to litigation, trust is required between the parties throughout the process. Transparency is a theme. While the lawyers remain advocates protecting their clients’ interests, the boundaries are lowered in obtaining information. Tax returns and checking account statements are freely traded. If a party needs back up information, it’s asked for and given. There are no subpoenas, no production requests, no fighting over disclosures. Since the parties have voluntarily chosen the collaborative method, they’ve already agreed to a free exchange of information.
Trust is implicit in the parties’ ultimate goals as well. Fairly early on in the process, the parties meet with the team and discuss their goals. Even if the goals conflict, and they often do, a free and honest exchange of what each party wants or needs allows the parties, with the help of the team to formulate plans to achieve the goals or modify the goals to the satisfaction of both. With the open dialogue early, the collaborative process does away with hidden agendas and surprise attacks.
The professional team members also operate with a refreshing trustful purpose. The lawyers, while protecting their client, trust that the documents tendered are complete and accurate. If asked for verification or additional information, the lawyers freely exchange information. Since the parties are freely discussing their needs and wants, the need for litigious skepticism over documents, timing or phrasing is gone allowing the lawyers to simply focus on the legal issues.
The team members foster trustful progress through various interactions. The lawyers communicate much like during litigation, discussing information exchange, visitation issues and settlement. However, much of the communication occurs as a team with the lawyers talking or emailing with the coach, financial neutral or child specialist altogether so the team is always aware of the progress and any issues that may affect their portion of the case. Attorney client privilege remains, but since the clients own the process and understand the need for transparency, the clients don’t utilize the privilege for protection as much as in litigation. It’s all on the table.
Ultimately, the process only works if the parties trust the process itself. The question of whether the other party is being open and honest with their information and their needs and wants are fully disclosed can be unnerving. Once the trust is gone from the collaborative process, the process ends. For the same reason, not every case is right for a collaborative resolution. Where the parties begin with enormous distrust over finances, fidelity or just honesty in general, litigation may be the best option. For many, however, the ability to control their divorce, to operate together towards a resolution that they own and that will control their lives going forward, the honesty of the collaborative process is empowering.
Brad Pawlowski is a trained mediator and fellow with the Collaborative Law Institute of Illinois. Contact him for more information on collaborative dissolutions and a better way to divorce.