Is Collaborative Divorce Right for You?

I recently attended a Master Class in Becoming a Successful Full-Time Collaborative Professional in St. Louis, Missouri. The trainers were Pauline Tesler and Forrest (Woody) Mosten, two seasoned family law practitioners and internationally recognized experts in the area of Collaborative Law.

During the class, I learned about developing my practice as a Collaborative Divorce lawyer. Part of developing a successful practice (Collaborative or otherwise), involves being able to help clients select the divorce process that is right for them. After my training in St. Louis, I am convinced now more than ever that: (1) Collaborative Divorce absolutely provides the healthiest emotional outcome for families; AND (2) Collaborative Divorce will not work for every family and that there are still certain clients/situations where other alternative dispute resolutions or traditional litigation may be more appropriate.

As Collaborative lawyers, I think we do our clients a disservice when we “sell” them on a process they are not suitable for.

Many websites that promote using the Collaborative Law Process ask questions like:

  1. “Do you want to be in control of your own future, rather than relying on a court’s decision?”
  2. “Do you want the cost of your divorce to be less?”
  3. “Do you want to preserve your children’s emotional health during and after the divorce?”
  4. “Do you want to be treated with respect and dignity during your divorce?”

I have also used these kinds of questions in my initial discussion with clients about choosing the Collaborative route. Don’t get me wrong, these are all good questions and goals that can be achieved by using the Collaborative Law Process. But, who in their right mind is going to answer “no” to any of them? Most clients are not going to walk in your office and say, “I want to engage in an expensive drawn out legal battle where a judge gets to make all the decisions that may or may not be best for my family, oh and by the way I also want to be treated terribly during the entire process.”

Determining a client’s suitability for a Collaborative Divorce

Wanting what is obtainable by using the Collaborative process and having the mental wherewithal to be an active and effective participant in Collaborative Law are two entirely different animals. In determining a client’s suitability for a Collaborative Divorce, Pauline Tesler [with thanks to Art Bodin and Neil Penn] provides the following “Screening Factors Indicating Client Suitability for Collaborative Divorce” as a guide for professionals in their counseling of clients about process choices:

  1. Client’s ability to articulate reasonable, appropriate goals, reflect on them and accept that not all goals may be achievable in full—in collaborative divorce or anywhere else.
  2. Client’s ability to shift from “blamer” and “victim” toward taking responsibility for being an active participant and problem solver.
  3. Client’s ability—with appropriate help– to focus on the unfolding future despite what may be heavy emotional burdens such as anger, guilt, depression, resentment, grief, etc.
  4. Client’s ability to tolerate negative emotions in their separated or ex-spouse, and recognize and modulate their own.
  5. Client’s ability to understand and respect the play of differences in personality, processing style, coping behaviors, decision-making style, and—most importantly—differences in stages of recovery from the loss of the marriage—in the divorce conflict resolution process.
  6. Client’s willingness to learn and utilize coping skills that enable clear thinking and communications during all collaborative meetings.
  7. Client’s ability to sustain appropriate behavior at all collaborative meetings and to accept professional guidance in this regard when necessary.
  8. Client’s ability to see and respect the viewpoint and concerns of their separated or ex-spouse and to have interest in solutions that meet the legitimate needs of both parties. This does not preclude clients from pursuing their own goals, but is an essential foundation for consensual collaborative resolution.
  9. Client’s ability to form functional connections with members of the collaborative professional team, as evidenced by their willingness to have frank and reasonable discussions focused on solving problems, to accept and incorporate advice and feedback, to consider alternative possibilities for resolution, and to make and re-evaluate decisions.
  10. Client’s willingness and ability to follow through on interim process and substantive agreements and to be held accountable for doing so.

As Collaborative professionals, we have an obligation to “screen” potential clients to try and determine if the Collaborative process can work for them. If clients possess the qualities above, success in the Collaborative Divorce process is more likely. According to Pauline Tesler, if some but not all these criteria seem to describe your client, your client may still achieve success in the Collaborative Divorce process if they have a deep and genuine desire for a better outcome in their divorce and they are willing to work with a collaborative divorce coach to hone or develop skills and understandings that strengthen factors correlated to success.

I believe in and have outlined the many benefits of Collaborative Family Law in my May 2011 Blog titled “Is Collaborative Family Law the “Kumbayah”Divorce?” But before clients choose (and lawyers recommend) Collaborative Law, a thoughtful discussion should take place about the client’s overall suitability for the process of if their circumstances call for an alternative approach.