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Collaborative Divorce: Leaving in Peace.

St Paul resident, Bonnie P., had every reason to think her divorce would be an all-out war.  She and her surgeon husband had three children and complicated finances.  Throughout the marriage, Bonnie had been a homemaker: To become self-sufficient, she’d need substantial maintenance to meet her living expenses and attend college.  Her circumstances were the usual powder keg that, as often than not, explode into a mushroom cloud of litigation.

But that’s not what happened.  Thankfully---for Bonnie, for her husband, and for their children---no one lit the fuse (by serving papers and starting a formal divorce action).

Luckily, Bonnie was involved with a counselor who told her about “collaborative practice,” a “no litigation” method of helping families pass through the divorce gauntlet in peace. 

Equipped with that information, Bonnie and her husband travelled a different divorce path.  With the help of neutral professionals, they worked out their own parenting schedule and financial solutions.  They worked through hard topics, while continuing to respect one another.  By avoiding litigation, they saved tens of thousands of dollars.

So, what is “collaborative practice”?

Well, the collaborative approach began approximately twenty years ago in the Twin Cities.  Divorce attorney, Stu Webb, burned out by scorched earth litigation tactics, wanted to quit practicing law.  Instead, he searched out colleagues who felt the same way...and they weren’t hard to find.  In time, together, they developed and honed a new and useful method of helping families through hard times. 

What did they do? Well, they abandoned the traditional divorce process altogether.

Traditionally, divorces play themselves out through two separate, but related, processes that unfold at the same time.  One party usually starts a legal action: The dispute then involves a judge, trial lawyers, and a courtroom (the litigation process).  Somewhere along the line, before that case reaches its trial, the dickering begins, often in a mediation setting (the negotiation process).

In other words, divorce negotiations usually occur under the threatening shadow of looming litigation.  There, negotiations can be hampered by: (1) the negative emotion spawned by hardball litigation tactics; (2) a reluctance to share information that might be used against one in the litigation environment; or (3) an unwillingness to school the other in the weaknesses of his or her case.

The key premise of collaborative law is to disconnect the two processes, to sever the negotiation of a family dispute from the litigation process. 

By severing the negotiating from the litigating, collaborative law:

 

            *          replaces an adversarial process with a problem-solving approach;

            *          prevents, rather than promotes, litigation;

            *          preserves family assets;

            *          promotes, rather than destroys, post-divorce relationships;

            *          places children at the center of the dialogue, rather than the middle of the fight; and

            *          Achieves more durable, lasting, agreements.

The collaborative approach creates these improvements in a simple, but radical, way.  It requires all involved—the husband and his lawyer, and the wife and her lawyer—to sign an amazing contract: All four must agree, in writing, that neither party will serve and file the divorce action!

There will be no litigation.  Instead, all of the parties’ and their lawyers’ resources  and energies will be devoted to negotiating.  Exactly none of their resources and energies will be devoted to litigating.  Freed from the dynamics of hostile litigating, the parties’ negotiations are liberated, less guarded.  They are less adversarial and more… well…collaborative.

There is a special term in the parties’ collaborative agreement that goes far to assure these goals:  If either party chooses to abandon the collaborative approach—by serving and filing the divorce action—both attorneys must withdraw.  In other words, the collaborative lawyers are prohibited from also serving as the parties’ trial lawyers.  They must be replaced.

Likewise, any experts (eg., accountants, counselors, psychologists) the parties have jointly retained to help them during the collaborative negotiations are barred from becoming involved as witnesses in the divorce litigation.

Thus, the deeper the parties progress in their collaborative negotiations, the greater their stake in continuing, rather than abandoning, the process.  The same is true for the lawyers. In a traditional divorce, a lawyer gains when negotiations stall and the parties choose to try their case: Trials are time-consuming and expensive, so the lawyer’s fees skyrocket.  With the collaborative approach, when parties choose to litigate, lawyers lose their clients and, with them, their source of income.

People interested in resolving their divorce through the collaborative method, will follow these seven steps:

Step 1:  Find and hire a collaborative attorney.  You don’t become an astronaut by simply calling yourself one.  Likewise, you don’t become a collaborative lawyer by self-anointment.  Instead, a “collaborative attorney” is one formally trained in the collaborative process, then committed to its use. 

If you are looking for a collaborative lawyer, ask about his or her training and experience with the process.  Likewise, in this area, a collaborative lawyer will likely be a member of both the Collaborative Law Institute of Minnesota and the International Academy of Collaborate Professionals.  At this time, there are only three trained collaborative law attorneys in Fargo-Moorhead and the surrounding region. 

The first collaborative attorney contacted provides the client the identity and contact information of other collaborative lawyers.   The client shares the list with his or her spouse, who then selects one of the other listed attorneys.

Step 2:  Start the process.  Once collaborative lawyers are hired, the next step is a four-way conference, involving the parties and the two attorneys.  During this meeting, the ground rules of the collaborative process are established.  Everyone then commits to those ground rules by signing a Participation Agreement.

Step 3:  Take care of immediate problems.  The beginning of most divorces is an anxious time, often fraught with emergencies, both real and perceived:  Will we remain under the same roof or separate while the divorce is processed?  How will we share time with the children?  Who will have use of which assets and property items?  Who will pay which bills?  Will she gut our accounts?  Will he run up balances on our joint credit cards?  In the collaborative process, the parties will focus, first, on issues like these.

Step 4:  Gather information.  No one should enter an agreement without being fully informed.  Accordingly, most litigated divorces begin with months of formal “discovery,” a process where the attorneys send one another lengthy requests for information and documents. Responses, tailored for litigation purposes, are often evasive and uninformative. To the contrary, the collaborative process requires a commitment to transparency.  Both parties promptly share required financial and other information.  The process plays out more quickly, more cheaply, more thoroughly.

Step 5:  Share Experts.  Divorcing parties often need the assistance of experts:  Appraisers or auctioneers may be hired to value assets; Accountants may be hired to appraise businesses or assess tax effects; Psychologists or counselors may be hired to help determine the shape of parenting schedules.  In a litigated divorce, both parties hire their own experts, thus doubling expenses.  In the collaborative process, the parties employ experts jointly, the experts remain neutral, and the parties save dollars.

Step 6:  Negotiate the Settlement.  In a litigated divorce, the parties do not interact with one another.  Proposals are communicated between the lawyers.  When they negotiate under one roof, the parties are situated in separate rooms.  In the collaborative process, the parties and their attorneys negotiate face-to-face, at a single table. 

In addition, the attorneys are trained to move past “positional” negotiating in favor of “interest based” bargaining.   Positional bargaining is a trading of offers where there is often a “winner” and a “loser” (imagine buying a used car). Interest-based negotiation drills deeper: It is a method of solving common problems together, to generate win-win solutions.

Step 7: Obtain the Final Decree.  Only once the parties have settled their case and signed an agreement is a formal divorce action commenced.  A court file needs to be opened to file the agreement, gain the court’s approval, and receive a final divorce judgment and decree.

These are the steps that Bonnie and her husband followed to avoid what might have been a self-inflicted blood bath.  Instead, she describes her relationship with her ex as “healthy” and “spectacular.”  “We went through an awful time for our family…without being hurtful to each other.”  Because of the collaborative approach, their divorce was about problem-solving, not retribution and retaliation.

Since Stu Webb conceived the collaborative method, it has traveled to no fewer than 46 states.  What’s more, it has found its way to Europe, to Asia, to Africa, and to Australia.  Now, at long last, it has finally made its way a few short hours up Interstate 94 to Fargo-Moorhead. 

In time, as it has everywhere else, the collaborative approach will reduce the need in this area for families to resolve their disputes in a trial setting.  More disputes will be resolved by agreement.  Families will save more dollars. More children will avoid the scars inflicted by warring parents.

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Michael L. Gjesdahl

Mike founded Gjesdahl Law, P.C. in 1989. His practice is exclusively devoted to families, their transitions, their needs. Throughout his career, he has confronted every imagin…
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