Is Collaborative Divorce a Wolf in Sheep’s Clothing?

A legal phenomenon called collaborative divorce is sweeping across North America and is being sold as the answer to the age-old question: “How can we get divorced quickly, fairly and cheaply?” Family law lawyers who have embraced the doctrine of collaboration are effusive in their praise and defense of this new process for divorcing couples. There are websites galore extolling its virtues.

Many of them list a myriad of reasons why separating spouses should reject traditional family law lawyers in favour of collaborative lawyers. Very few of these sites discuss the downside or the disadvantages of collaborative family law. At least one site declares there are no disadvantages to collaborative divorce.

So, what is collaborative divorce and where did it come from? In 1990, lawyer Stuart Webb of Minnesota decried the emotional and financial devastation experienced by many of his family law clients. He wondered if divorce could be done in a kinder, gentler way and thought it could.

He devised a process where a divorcing couple would each retain a collaboratively trained lawyer and sign an agreement providing that each spouse would enter into interest-based negotiations with the assistance of their lawyers. Meetings would be scheduled where spouses and lawyers would discuss and settle all issues related to their divorce including property, custody, and child and spousal support.

To experienced family law lawyers there was nothing new about four-way settlement meetings. They had been the basis for settlement discussions for decades.

But the collaborative process introduced an additional feature. The agreement signed by the spouses and their lawyers stipulated if the collaborative process was not successful, their lawyers could no longer represent them and they would be compelled to “start over” with regular family law lawyers, otherwise known as litigators.

This “court is not an option” approach is a critical component of the process, expected to compel adversarial spouses to settle, rather than face the prospects of new lawyers armed for court battle.

It all sounds wonderful and for some divorcing couples it is effective. Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts, who are called upon to assist, for a fee.

It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts,” one can easily imagine spiraling costs. In one case involving a short marriage with no children, a couple claimed that the collaborative process cost $55,000.

This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst.

On website, the authors point out, “No one should be in a hurry to reach issues quickly because of time constraints.” This reminds me of the unspoken philosophy behind mediation, where couples could spend years with a mediator who was apparently skilled at bringing divorcing couples to “yes”, but not in a timely fashion. In certain instances, couples could be done and divorced in court for the same price-tag as the marathon mediation.

This same website encourages collaborative participants to “control the meeting.” This is a disturbing admonition for a process that is intended to promote fairness, cooperation and a level playing field.

But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. The “warm and fuzzy” marketing is merely a smokescreen.

In certain respects, collaborative divorce is a wolf in sheep’s clothing where strategies usually reserved for “bulldogs” are implemented, including the dreaded “nothing is settled until everything is settled” and “We refuse to counter” mentalities, driving one party to negotiate against him or herself.

As for me, the jury is still out. Oh yes, I have always practiced family law collaboratively, I just didn’t adopt the tag.

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