Collaborative Divorce

Why trust and divorce can go hand in hand

The emerging field of collaborative law is viewed with equal parts hope and skepticism. On one hand, courts, lawyers and divorcing couples, especially those with children, have struggled to find a way to make divorce less bitter and less emotionally draining. In a collaborative divorce, the parties seek to minimize the amount of pain experienced by children and parents by agreeing not to go to court and instead to participate in a series of negotiations to address all aspects of their divorce. The parties agree that all discussions and information provided remains confidential The parties are not permitted to use threats of litigation, custody or otherwise.

Collaborative divorce seems like a good concept in theory but not in practice. When it comes to divorce, there is often a lack of trust between the parties and a great deal of anger. Most couples seeking to divorce have problems communicating with one another, which has often contributed to the decision to divorce. It seems hard to believe that two people who are unable to communicate will be able to do during this emotional and difficult period of their lives. When presented with this concept, many people respond that, if they could communicate, they wouldn’t be getting divorced in the first place.

At first glance, it seems unlikely that two people who can’t get along will be able to discuss their divorce in such a calm and reasonable manner. But a growing number of collaborative divorce practitioners, themselves disenchanted with the hostility-driven traditional divorce process, are finding success with collaborative law. In order to understand how collaborative divorce works, it is important to understand the concept of process trust.

There is a difference between trust between the parties and trust in the process. Collaborative divorce creates an environment of process trust by requiring full disclosure and enforcing the parties obligation to do so. A collaborative divorce lawyer must make full disclosure, and correct and mistaken assumptions on the part of the other party. And the lawyer must insist that his or her client do so as well. In traditional litigation, a lawyers role is to advance the position of their client without regard to the interests of the family. This type of “winner takes all” mentality may work well in a business context, but not in a divorce where the focus is supposed to be on the best interest of the children. In a collaborative divorce, lawyers work not as opposing counsel but, instead, as members of a team that is committed to achieving the best result for both parties and their children.

Collaborative divorce is not a fix all solution. Neither is protracted litigation over financial assets or a drawn out custody battle. The difference is that, with collaborative divorce, parties can create an environment that encourages them to move forward and which preserves financial resources and helps protect their children. Although trust between parties may have been lost, process trust can be created and can help the parties move forward.


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