Alternative Dispute Resolution to a Divorce Part 2: Collaborative Divorce
Say the word “divorce” and most people picture the movie version: a process server bursting through the door, a courtroom shouting match, and a judge deciding your family’s future based on the slice of your life that makes it into the record. Here’s what Hollywood leaves out: most divorces settle, and alternative dispute resolution lets you and your spouse keep control of the outcome, trading the expense, delay, and a good deal of the drama for an agreement built around your children and your family.
In part 1 of our series, we covered mediation, principled negotiation, and facilitated negotiation, and why a “successful divorce” is possible: one where your children never have to agonize over the seating chart at their wedding, and both parents can proudly walk beside them at graduation.
In part 2, we explore another road to that outcome: collaborative divorce.
What is Collaborative Divorce?
Collaborative Practice is a voluntary, out-of-court process, formally recognized under Ohio’s Collaborative Family Law Act, in which each spouse signs a participation agreement and is represented by a lawyer trained in the collaborative process.
What truly sets the process apart is that it is a team approach. Because divorce is first and foremost an emotional and financial event, the spouses can agree to bring other neutral professionals to the table to help with both.
The model was born in 1990, when Minnesota attorney Stuart Webb, after fifteen years of practicing divorce law, decided he was done taking clients to court. From then on, he would settle cases only alongside like-minded attorneys, and any client who wanted to litigate would be referred elsewhere. He imagined a process where the settlement climate is created deliberately: no lawyer quietly taking notes on the negotiation to use later at trial, and no one ending the conversation with the infamous “see you in court.” Stuart Webb’s letter to Justice Keith dated February 14, 1990 where he introduces this new concept can be accessed here.
In 2014, Gwyneth Paltrow and Chris Martin announced that they were “consciously uncoupling,” and the internet had a field day. The phrase was mocked as celebrity jargon for divorce, but the idea behind it is at the very core of collaborative divorce. Paltrow and Martin explained that their principal commitment was to put their children first and to find a way to stay a family, even though they no longer were a couple.
It was not always easy. Paltrow recalls one early family brunch that nearly went off the rails, until the two of them stepped out onto the porch, agreed not to let their disagreement take over the day, hugged, and went back inside.
That porch moment did not happen by accident. The collaborative approach Paltrow and Martin embraced gave them the tools to step back, cool down, and choose their children over the argument. Collaborative divorce will not make a divorce painless, and it does not require you to become best friends with your former spouse. What it offers is that same set of tools, built into a structure designed to protect the relationships between your children and both of their parents.
Step One: Commitment
Both spouses and their collaborative attorneys sign the participation agreement, stating up front their shared intention to resolve the divorce outside of court and to negotiate in good faith. Most importantly, the attorneys and professionals involved with the collaborative divorce commit to withdraw from the case if a settlement is not reached and litigation begins.
That single signature changes the whole tone of the conversation, because nobody is drafting discovery requests with one hand while negotiating with the other. And because the lawyers can only succeed if the family reaches an agreement, everyone at the table, lawyers included, has every reason to make settlement work.
Step Two: The Team
Each party will have retained a collaboratively trained lawyer that will guide them through the process. In addition to the two collaboratively trained lawyers, the parties can bring in other professional neutrals:
- A neutral financial professional can gather and make sense of the numbers so both spouses are working from the same facts.
- A divorce coach can help each spouse manage the emotions of the process and communicate productively. Each party can also choose to have their own divorce coach rather than only one.
- A child specialist can bring your children’s needs and perspective into the room without putting them in the middle.
Step Three: Negotiation
The negotiation itself is interest-based rather than the standard positional-type negotiation that we typically see (I say 0, you say 100, we settle at 50). Interest-based negotiation, starts with a different question: not “what do you want?” but “why do you want it?” Take the family home. One spouse insists on keeping it; the other insists it be sold. Dig a little deeper, and the real interests surface: one parent wants the children to stay in their school district, while the other needs cash to buy a place of their own. Once those interests are on the table, new options appear, such as delaying the sale until the youngest graduates or funding a buyout with other assets, that neither spouse would have reached by trading numbers.
The lawyers still play an important role. They help each spouse negotiate “in the shadow of the law,” explaining how a court would likely handle a given issue so that every decision is an informed one. But it is the spouses that ultimately remain in the driver’s seat.
Step Four: The Result
If the process is successful, the collaboratively trained lawyers will draft the final agreements and file them with a Petition for Dissolution of Marriage. A brief final hearing follows (see part 1 for what to expect). In most cases, the court grants the dissolution that same day.
If the process does not work, then all settlement discussions remain confidential and cannot be used during litigation. The attorneys will withdraw from the case, and each party will be free to hire new litigation counsel for litigation.
Who is it right for?
Collaborative divorce tends to be a good fit for spouses who want to resolve their differences privately, around a table rather than in a courtroom; who expect to co-parent for years to come; and who are willing to be transparent about their finances and to listen to one another, even when it is emotional and frustrating.
However, collaborative divorce is not for everyone. It requires both spouses to be on board, and that is not always the case. Additionally, if you are leaving because of abuse or domestic violence, or if there is a significant power imbalance between you and your spouse, the collaborative table is not a safe or realistic option. Finally, collaborative divorce, while typically cheaper than a litigated divorce, carries its own costs to consider, given the involvement of multiple professionals.
There is more than one road out of a marriage, and the right one depends on your circumstances. At KJK, we can help you choose the alternative dispute resolution process that best fits your family and provide legal counsel every step of the way. Reach out to Eva C. Saulnier (ECS@kjk.com) or another member of KJK Family Law by calling 216-696-8700.