Vail Daily column: Collaborative divorce
March 20, 2012
Pat Benatar had it right; love is a battlefield. Especially when it comes to divorce. But it doesn’t necessarily have to be so. Although never pleasant, divorce can be – with some resolve – well, downright civil.
“Collaborative divorce” is just what it sounds like; divorce to be sure, but with collaboration or cooperative between the parties. While cooperation in divorce may seem anathema to every silly stereotype you’ve ever entertained about divorce, it can be a process which, if not exactly peaceful, may at least turn down the burners and just maybe save the parties cash, time and unnecessary heartache.
In collaborative divorce, the watchword is “fairness.” Rather than going to court – or threatening to go to court – the parties, with their lawyers – endeavor to reach settlement through a series of meetings or negotiations. At times, neutral third-party experts are involved to deal with complicated issues such as valuation of a business or various marital assets. The focus of the four-way meetings is to identify the needs, goals and priorities of the parties and to establish a road map for obtaining them. Key to the process is that the parties set their own standards and, with assistance of counsel, reach their own decisions. The overarching thesis of collaborative divorce is that, rather than deferring to the dispassion of the courts, the parties themselves know what is best for them and what will most fully suit their goals, priorities and circumstances.
While there are superficial similarities between mediation and collaborative divorce, the two are qualitatively different. In mediation, a neutral third party – often a retired judge – facilitates the process of dispute resolution but neither represents nor advises either side. Collaborative divorce is more proactive. Not only are both parties independently represented by counsel, but both are fully advised as to the applicable law and the consequences of potential options. While agreeing to cooperate in resolution of any stumbling blocks, each party is represented by his or her own advocate who both drives and facilitates negotiations.
The key instrument in collaborative divorce is what’s known as a “participation agreement.” A participation agreement is a contract signed by both parties whereby the rules are set for the negotiations. Essential to the agreement is an understanding that the lawyers will not under any circumstances litigate the case. If the process fails and the matter leads to court, the original attorneys must withdraw and the parties must each retain new counsel. This is generally referred to as a “disqualification provision.” Key, too, to the process is the understanding that both parties will be fully forthcoming and will neither hide nor distort any material information or pertinent facts. Any experts who may become involved are hired by both parties and act as neutrals, representing the interests of neither party but, instead, focus simply on the facts without advocacy of one position or the other. It is presumed – and generally explicitly provided – that neither party will take advantage of mistakes by the other and will at all times act courteously and proceed in good faith. Everything said in negotiations is, and will remain, completely confidential.
The disqualification provision has two functions: first, it assures that the attorneys’ interests are aligned with the clients’; as they will have to withdraw if negotiations fail the attorneys have no incentive to draw out the matter and take it to court. Second, the parties themselves are incentivized; if negotiations fail, they will have squandered time and treasure in pursuing a dead-end course and will have to start all over with new counsel. In essence, there is a significant financial penalty for failure.
Experts who may become involved often include financial specialists who may not only perform certain financial analyses but may also educate the parties, help model various alternatives to dividing the family’s wealth and assist in budgeting and planning. Where there are minor children, family consultants may also be employed to assist in developing a parenting plan that works not only for the parents but which is devised to function in the best interests of the children. Sometimes, communication coaches or other similar therapists may be brought in to help the parties listen to and understand each other.
While the concept of collaborative divorce is not new, until recently its use has at best been spotty. As it becomes more and more common a vehicle to address what is often the contentiousness of divorce, however, reports are encouraging and suggest its general efficacy. Early reports just now seeing press suggest a success rate in excess 90 percent of cases reaching settlement.
It is worth noting that the Colorado Bar Association has raised some ethical considerations about the practice and so, before proceeding, it is wise to discuss the implications with your attorney and to make sure the participation agreement is crystal clear as to just who each attorney represents.
While still feeling its wings, collaborative divorce may be a godsend and may function to reduce the time, stress, acrimony and expense of more traditional methods of, as Fleetwood Mac once sang, going your own ways.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.