1.  What are my choices for professional help in my divorce?

Some couples resolve all their divorce issues without any professional assistance at all, and process their own divorce papers themselves through the courts. On the other end of the spectrum, some couples engage in drawn-out courtroom battles that cost dearly in emotional and financial resources and can take considerable time to complete. Most people find their needs are between these extremes.

Below are the choices for obtaining professional legal services in divorce that are available in most localities today. The list moves from choices involving the least degree of professional intervention, and the most privacy and client control, to choices involving greater professional intervention and the least privacy and control.

Unbundled Legal Assistance: The client in this model acts as a “general contractor” and takes primary responsibility for the divorce, making use of legal counsel on an “as needed” basis to help in resolving specific issues, drafting papers, and so forth. The lawyer doesn’t take responsibility for managing the case.

Mediation: A single neutral person, who may be a lawyer, a mental health professional, or simply someone with an interest in mediation, acts and the mediator for the couple. The mediator helps the couple reach agreement, but does not give individual legal advice, and may or may not prepare the divorce agreement. Few mediators will process the divorce through the court. Retaining one’s own lawyer for independent legal advice during mediation is generally wise. In some locales, lawyers sit in on the mediation process, and in other locales they remain outside the mediation process. Mediators do not have to have to be licensed professionals in most jurisdictions.

Collaborative Law: Each person retains his or her own trained collaborative lawyer to advise and assist in negotiating an agreement on all issues. All negotiations take place in “four-way” settlement meetings that both clients and both lawyers at-tend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, the collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer’s job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process, but all the decisions are made by the clients. The lawyers generally prepare and process all papers required for the divorce.

Conventional Representation: Each person hires a lawyer. The lawyers may be good at settling cases, in which case they work toward that goal at the same time that they prepare the case for the possibility of trial. If the lawyers are not particularly good at, or interested in, settling the case all lawyer efforts are aimed solely at preparing for trial, though a settlement may still result at or near the time of trial. Either way, the pacing and objectives of the legal representation tend to be dictated by what happens in court. Cases handled this way generally involve higher legal fees, and take longer to complete, than collaborative law cases or mediated cases. The risk of a high conflict divorce is higher than with mediation or collaborative law.

Arbitration, Private Judging, and Case Management: In some states, it is possible for clients and their lawyers to choose private judges or arbitrators who will be given the power to make certain decisions for the clients as an alternative to taking the case into the public courts. Case management is an option available from private and some public judges, in which the judge is given the power to manage the procedural stages of pretrial preparation, as well as settlement conferences, by agreement of the clients and their lawyers. These options can reduce somewhat the financial cost and delays associated with litigation in the public courts. The financial and emotional costs may still remain high, however, because positions are polarized and the lawyers have no particular commitment to settlement as the preferred goal, and continue to represent the client whether the case settles or goes to trial.

“War”: One or both parties is motivated primarily by strong emotion (fear, anger, guilt, etc.) and as a consequence the parties take extreme, black and white positions and look to the courts for revenge or validation. Reasonable accommodations are not made. The attorneys often function as “alter egos” for their clients instead of counseling the clients toward sensible solutions. This is the costliest form of dispute resolution, emotionally and financially. It is always destructive for the children involved. Such cases can drag on for many years. Few clients report sates-faction with the outcome of cases handled this way, regardless of who won.

2. Can you say more about Collaborative Law?

3. Is Collaborative Law only for divorces?

4. What is the difference between Collaborative Law and mediation?

5. How is Collaborative Law different from the traditional adversarial divorce process?

• In Collaborative law, both parties insulate their children from their disputes and, should custody be an issue, they avoid the professional custody evaluation process.

• Both parties in collaborative law use joint accountants, mental health consultants, appraisers, and other consultants, instead of adversarial experts.

• In collaborative law, a respectful, creative effort to meet the legitimate needs of both spouses replaces tactical bargaining backed by threats of litigation.

• In collaborative law, the lawyers must guide the process to settlement or with- draw from further participation, unlike adversarial lawyers, who remain involved whether the case settles or is tried.

• In collaborative law, there is parity of payment to each lawyers so that neither party’s representation is disadvantaged vis-à-vis the other by lack of funds, a frequent problem in adversarial litigation.

6. What kind of information and documents are available in the collaborative law negotiations?

7. What happens if one side or the other does play “hide the ball,” or is dishonest in some way, or misuses the Collaborative Law process to take advantage of the other party?

8. How do I know whether it is safe for me to work in the Collaborative Law process?

You are generally the best judge of your spouse or partner’s basic honesty. If s/he would lie on an income tax return, he or she is probably not a good candidate for a Collaborative Law divorce, because the necessary honesty would be lacking. But if you have confidence in his or her basic honesty, then the process may be a good choice for you. The choice ultimately is yours.

9. Is Collaborative Law the best choice for me?

a) You want a civilized, respectful resolution of the issues.

b) You would like to keep open the possibility of friendship with your partner down the road.

c) You and your partner will be co-parenting children together and you want the best coparenting relationship possible.

d) You want to protect your children from the harm associated with litigated dispute resolution between parents.

e) You and your partner have a circle of friends or extended family in common that you both want to remain connected to.

f) You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.

g) You value privacy in your personal affairs and do not want details of your problems to be available in the public court record.

h) You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).

i) You recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.

j) You place as much or more value on the relationships that will exist in your re-structured family situation as you place on obtaining the maximum possible amount of money for yourself.

k) You understand that conflict resolution with integrity involves not only achieving your own goals but also finding a way to achieve the reasonable goals of the other person.

l) You and your spouse will commit your intelligence and energy toward creative problem solving rather than toward recriminations or revenge—fixing the problem rather than fixing blame.

10. My lawyer says she settles most of her cases. How is collaborative law different from what she does when she settles cases in a conventional law practice?

Nothing could be more different from what happens in a typical collaborative law settlement. The process is geared from day one to make it possible for creative, respectful collective problem solving to happen. It is quicker, less costly, more creative, more individualized, less stressful, and overall more satisfying in its results than what occurs in most conventional settlement negotiations.

11. Why is collaborative law such an effective settlement process?

Collaborative lawyers do not act as a hired guns, nor do they take advantage of mistakes inadvertently made by the other side, nor do they threaten, or insult, or focus on the negative either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation they participate in.

Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process.

Collaborative Law offers a greater potential for creative problem solving than does either mediation or litigation, in that only collaborative law puts two lawyers in the same room pulling in the same direction with both clients to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they generally pull in opposite directions. No matter how good the lawyers may be for their own clients, they cannot succeed as Collaborative Lawyers unless they also can find solutions to the other party’s problems that both clients find satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.

12. What if my spouse and I can reach agreement on almost everything, but there is one point on which we are stuck. Would we have to lose our Collaborative Lawyers and go to court?

13. What if my spouse or partner chooses a lawyer who doesn’t know about Collaborative Law?

Trust between the lawyers is essential for the collaborative law process to work at its best. Unless the lawyers can rely on one another’s representations about full disclosure, for ex-ample, there can be insufficient protection against dishonesty by a party. If your lawyer lacks confidence that the other lawyer will withdraw from representing a dishonest client, it might be unwise to sign on to a formal collaborative law process (involving disqualification of both lawyers from representation in court if the collaborative law process fails).

Similarly, collaborative law demands special skills from the lawyers—skills in guiding negotiations, and in managing conflict. Lawyers need to study and practice to learn these new skills, which are quite different from the skills offered by conventional adversarial lawyers. Without them, a lawyer would have a hard time working effectively in a collaborative law negotiation.

And some lawyers might even collude with their clients to misuse the collaborative law process, for delay, or to get an unfair edge in negotiations. For these reasons, some lawyers hesitate to sign on to a formal collaborative law representation with a lawyer inexperienced in this model. That doesn’t mean your lawyer could not work cordially or cooperatively with that lawyer, but caution is advised in signing the formal agreements that are the heart of collaborative law where there is no track record of mutual trust between the lawyers. You and your spouse will get the best results by retaining two lawyers who both can show that they have committed to learning how to practice collaborative law by obtaining training as well as experience in this new way of helping clients through divorce.

14. Why is it so important to sign on formally to the official Collaborative Law Agreement? Why can’t you work collaboratively with the other lawyer but still go to court if the process doesn’t work?

Any effort by parties and their lawyers to resolve disputes cooperatively and outside court is to be encouraged, but only collaborative law is collaborative law.

15. How do I find a collaborative lawyer?

16. How do I enlist my spouse in the process?

17. How long will my divorce take if I use collaborative law?

18. How expensive is collaborative law?

No one can predict exactly what you will pay for this kind of representation because every case is different. Your issues may be simple or complex; you and your partner may have already reached agreement on most, or none, of your issues. You may be very precise or very casual in your approach to problems. You and your partner may be at very different emotional stages in coming to terms with separating from one another. What can be said with confidence is that no other kind of professional conflict resolution assistance is consistently as efficient or economical as collaborative law for as broad a range of clients. While the cost of your own fees cannot be predicted accurately, a rule of thumb is that collaborative law representation will cost from one tenth to one twentieth as much as being represented conventionally by a lawyer who takes issues in your case to court.

19. Isn’t mediation cheaper because only one neutral, instead of two lawyers, has to be paid?

Also, most mediators strongly urge that independent lawyers for each party review and approve the mediated agreement. If the lawyers have not been a part of the negotiations, the lawyers may be unhappy with the results and a new phase of negotiations or even litigation may result. If the lawyers do participate, then three professionals are being paid in the mediation.

Lawyers who do both mediation and collaborative law typically see collaborative law as the model that offers greatest promise of successful outcome for the broadest range of divorcing couples. Of course, if two calm and reasonable people whose issues are not complex go to a mediator, they can usually achieve agreement efficiently and often at low cost. Generally, it is only after the fact that we know that a couple was well-suited for mediation. Strong feelings arise unexpectedly; issues become more complicated than anyone anticipated. Collaborative law can usually deal with these predictable happenings more readily than can mediation.

Many people genuinely believe that they will have a very quick and simple divorce negotiation, but life can be surprising. Many people prefer to have a process in place from the start that is well-equipped to deal with unexpected problems rather than to have to terminate a mediation and start over with litigation counsel.

20. How does the cost of collaborative law compare with the cost of litigation?