Collaborative Divorce

Collaborative Family Law.

Most of our practice involves direct representation of individual clients using the Collaborative Method of Divorce. This is a relatively new method in which all parties commit, in writing, to resolve their issues out of court using strategies designed to help them achieve their best possible outcomes. The Collaborative method is becoming increasingly popular around the world because it gives clients the opportunity to control the outcome of their divorce and to focus on what matters most.

Ron Ousky has been an international leader in the Collaborative Law movement and co-authored a book on the Collaborative Method with Stu Webb, the founder of Collaborative Law. The book, entitled The Collaborative Way to Divorce, the Revolutionary New Method that Results in Less Stress, Lower Cost, and Happier Kids—Without Going to Court, in 2006.

Collaborative Divorce has spread rapidly throughout the world during the past two decades and has helped thousands of families achieve better outcomes.

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While almost all cases eventually settle, the method of settlement that you use will have a very big impact on the quality of the agreement that you reach. While very few cases go to trial, most attorneys file papers with the court before a settlement is reached so that they can seek the court assistance during the time the case is progressing through the process. In these situations, the attorneys may go to the court for contested matters through motions and other forms of request or the court may require the attorneys and the parties to come to the court to work on a resolution of the matter through settlement conferences, case management conferences, early neutral evaluations, mediation or other court directed methods. While all of these methods can be helpful in settling matters, a certain amount of acrimony can be created when negotiation is done “in the shadow of the courthouse” and the parties give up some of the control of the case when they chose to file papers with the court. An increasingly popular way to keep the settlement discussions out of court altogether is to use the Collaborative Method of resolving your case.

Collaborative Law is a way of practicing law in which the attorneys agree to assist the parties using cooperative strategies rather than adversarial techniques and litigation. This early non-adversarial participation allows the attorneys to use analysis and reasoning to help their clients solve problems and creates a positive context for settlement. In Collaborative law cases, the attorneys and the clients all sign an agreement saying that, if one of the parties choose to go to court, both parties must use different attorneys. In the overwhelming majority of Collaborative Law cases, this tremendous disincentive essentially eliminates court as an option and forces clients and their attorneys to find more creative and civil ways to resolve their conflicts.

Collaborative Law was started in 1990 by Stu Webb, a Minneapolis attorney and one of the many professionals who served on the original divorceChoice.com Advisory Board. Because of its tremendous success in providing clients with an option that truly serves their interests, Collaborative Family Law has spread throughout North America, Europe and Australia.

The Collaborative Method is described in a new book written by Stu Webb, the founder of the Collaborative Method and Ron Ousky, the creator of this website and a leader in the Collaborative Movement. The book, entitled The Collaborative Method of Divorce. The Revolutionary Method that Results in Less Stress, Lower Costs and Happier Kids–Without Going to Court is available in bookstores everywhere by June 2006 and can be ordered at Amazon.com.

Additional information about Collaborative Law in Minnesota can be found at www.collaborativelaw.org.
For information about Collaborative Law throughout the world, go to www.Collaborativepractice.com.

Looking for a step-by-step guide to the Collaborative Divorce process?

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While Collaborative Divorce has many elements, there is one simple feature that defines the process: A Collaborative Divorce is one in which the husband and the wife each retain a lawyer for settlement purposes only.

In a Collaborative Divorce, unlike a traditional negotiation, the lawyers must withdraw if the divorce cannot be resolved out of court. To learn more about Collaborative Divorce, click the accordions below.

To view a step-by-step guide of the Collaborative Divorce process, click here.

To learn more about how the Collaborative method works, go to www.collaborativelaw.org orwww.collaborativepractice.com or www.collaborativedivorceminnesota.com.

That’s it. This one feature defines the process. As simple as this seems on the surface, it is easy to get confused about what Collaborative Divorce means for two reasons:

First, because the word “collaborative” is an adjective, (essentially meaning “working together”), that has been around for centuries, the word collaborative, (without a capital c), could be used to describe many divorces where people work together. However, in legal terminology, the phrase Collaborative Divorce, (capital C) has come to define aspecific divorce process in which the attorneys are retained for settlement purposes only. In a Collaborative Divorce, unlike a traditional negotiation, the lawyers must withdraw if the divorce cannot be resolved out of court.

Second, while using lawyers for settlement purposes only is the one defining feature, Collaborative Divorces often have many other elements that add greatly to the success of Collaborative cases. For example, Collaborative Divorce is often a team process in which the clients work with financial neutrals and mental health professionals in addition to attorneys. In addition, Collaborative Divorces generally use a very different method of negotiation called “interest-based negotiations”. These features allow people to get better outcomes in their divorce but are not part of the definition of Collaborative Divorce. Some Collaborative Divorces do not include all of these features.

The basic defining characteristic of Collaborative Divorce, (the fact that the lawyers must withdraw if the matter goes to court,) was introduced by Stu Webb, a Minnesota attorney in 1990. Stu’s simple but profound idea was that committing to settlement only would open the door to a new way of doing things that would help families get better outcomes. Indeed that is exactly what has happened. Great innovations like working with full interdisciplinary teams and using interest based bargaining are two of the common feature of Collaborative Divorce that have evolved as part of the Collaborative Divorce process as a result of this great commitment.

Understanding that Collaborative lawyers are hired for settlement purpose only is the first step in truly understanding Collaborative Divorce. The next step is to understand why that commitment is so essential to the success of Collaborative Divorce. Click here to understand why the strength and value of the Collaborative Commitment is essential to achieving a better outcome.

Having lawyers that are fully committed to settlement creates better outcomes. However, hiring a lawyer for this defined purpose has some risk. The success of Collaborative Divorce is based on the fact that, in most cases, the benefits far outweigh the risks. In order to understand why this is true, let’s look at the basic risks and benefits.

Risk: At the beginning of the case, you, your spouse and your respective lawyers sign a Collaborative Commitment stating that the lawyers must withdraw if either you or your spouse decides to fight in court. Therefore, the Collaborative Commitment creates a risk that you will need to switch attorneys during the divorce process. Indeed, that is the very idea behind the commitment. How significant is the risk? In my experience of around 500 Collaborative Cases, the parties have had to switch attorneys approximately 5% of the time. By comparison, in my experience practicing in the traditional model, (cases where the lawyers can go to court), the parties switched attorneys, (or the attorneys withdrew from representation for other reasons), almost 5% of the time. So, in reality, the risk that you will need to switch attorneys by starting in the Collaborative Process may not be significantly greater than in a non-Collaborative case.

Benefits: The most significant benefit from the Collaborative Commitment is that the attorneys are free to focus all of their attention on more creative settlements. Removing, or at least significantly diminishing, the threat of court, opens the door to interest-based negotiation. Instead of using argument, accusation and threats of court, (which are taken off the table), the attorneys advocate for their clients by using creativity, empathy and the development of shared goals.

What clients seem to want, in almost all instances, is a form of advocacy, (meaning protection of true interests), without creating animosity. In traditional practice, I sometimes felt like a bull in a china shop, unable to go in and help my client get what he or she truly needed, without risking damage to fragile, but important, things like the ability to co-parent and communicate effectively. Collaborative Divorce, by removing court as an immediate threat, allows me work to help my clients with far less risk to the relationship and other intangible goals.

Of course, the success of Collaborative Divorce can depend on more than just the Collaborative Commitment. Specifically, the best outcomes in Collaborative Divorce are achieved with a) a high level of commitment by the clients and 2) the skill of the professionals.

One of the reasons that the process works well is that it will cause you and your spouse to make the necessary commitment early in the process. Almost all divorce cases, (approximately 95%) settle out of court. However, too often the settlement comes after the parties are near the point of financial and emotional exhaustion, sometimes creating flawed settlements and resentment. Many people reach a point of committing to a settlement only when they are nearly out of money, or they are told by their attorneys or the judge that moving forward will not be successful. These reluctant settlements, while better than a trial, come at too great of a price and can lead to a rocky future for the family.

In a Collaborative Divorce, you, your spouse and your respective attorneys sign a Participation Agreement at the beginning of the process that will challenge you and your spouse to focus on commitment to settlement before you become financially and emotionally drained. Because you are both asked to engage your attorneys for settlement purposes only, you and your spouse are forced to think about your commitment to settlement at the very beginning of the case, and not “on the courthouse steps”. Early commitment from each of you will lead to better settlements that are made before financial and emotional resources are fully exhausted.

Early and deep client commitment is a big part of why people often get better outcomes in a Collaborative Divorce, since skilled Collaborative Professionals can help them commit, not only to settlement, but to other important matters, such as improving skills in the areas of parenting, communication or financial acumen.

However, this is only a part of the equation. In order to be successful, committed clients need to be guided by professionals that are skilled in helping them achieve the best outcomes in this new environment. For more information on skilled professionals, click here.