Working Divorce: Couples Trying to Avoid Legal Battle through Negotiations
The contentious process of litigated divorce forced one attorney to re-evaluate his part in it. He decided to take his divorce practice out of the courtroom. “I always saw myself in a helping profession. I wasn’t helping anybody. I wasn’t helping the client, I wasn’t helping myself. I just stopped taking those cases,”said Michael Stokamer, an attorney in private practice in New York and New Jersey.
He was frustrated that no one was satisfied by the ends results of the traditional divorce process, not even himself. “What made me switch, it just wasn’t working at the end of the process, nobody was happy,” he said. He couldn’t make his clients happy, and they were frustrated with the bills and negotiations. In the end, the results were usually shoved down people’s throats by pressure, from attorneys and judges, he said.
So he quit the courtroom and began practicing collaborative divorce and mediation in his company Divorce Mediation Solutions. It is there that he helps couples divorce in a respectful, non-threatening atmosphere, he said. The change is what he needed, he said. “I feel like I am doing a great service to my client and to my client’s family,” Stokamer said. “I feel like I am doing something worthwhile.”
ASSEMBLING A COLLABORATIVE DIVORCE TEAM
Collaborative divorce is a process in which a team gathers to help a couple dissolve their marriage. The team consists of an attorney to guide the legal negotiations, a financial specialist to consult on the financial divisions, a mental health professional to help the couple through the emotions of the divorce and a child specialist to help ensure that the process, including custody negotiations, are conducted in a way that is healthy and supportive of the children involved.
Both spouses must commit to the process in the beginning if collaborative divorce is going to work, said Susan Hansen, an attorney in private practice at Hansen and Hildebrand S.C. in Wisconsin and the past president of the International Academy of Collaborative Professionals. “I think that anyone who wants to try and work toward a healthy outcome for themselves and their family can benefit from collaborative divorce,” Hansen said.
All participants, including the divorcing couple, promise to negotiate the issues that arise in the divorce with compassion, open communication, and respect. If they can’t help the couple resolve the issues of the divorce, they will leave the team before taking the process into the courtroom.”In a collaborative divorce, all of the negotiations take place privately with the relevant specialists.There are no adversarial pleadings, motions, or court papers. There’s not a public dispute in which judges make decisions abut people’s lives,” Hansen said.
While it takes work and commitment to submit to a team process to dissolve a marriage, Hansen said, the process offers some practicality for people who want a sense of privacy or control over the process. “The negotiations take place in specialists’ offices, among the team members and the clients. It does not happen in the public paperwork or open court dispute,” Hansen said.
“The couple is responsible for assembling the team. They secure the experts with a participation agreement, then each specialist does his or her job to get the couple through the divorce. Couples intending to put together a collaborative divorce team can look online for information about people who are qualified to participate in the teams. Then, they can interview those with whom they feel a sense of report, Hansen said.
Interview professionals in the process and be sure they are selecting individuals with whom they have good communication and report. “You are talking about the most personal and important details of your life with someone, and there needs to be that trust and report,” Hansen said.
She recommends that couples meet face-to-face with the professionals they are considering adding to the team. It is imperative that they can effectively communicate with each team member, Hansen said. “Divorce is a difficult life transition,” Hansen said. “The last thing anyone needs is a difficult or adversarial relationship with their divorce professionals.”
The legal member of the team is responsible for handling all aspects of the law for the divorce. He or she may act as a liaison between the couple and the court system. A financial specialist is a neutral person on the team who works with both parties to assess the future financial needs of all parties, including the children in the family. The specialist may educate one or both parties about the finances, and help each party understand what the finances will look like once the marriage is dissolved.
The mental health specialist helps the clients with their communications skills and managing their emotions through the process. The child specialist meets with both parents and children to see how the child is adjusting to the end of the family and the break-up of the family unit.The specialist would help the parents develop a co-parenting agreement. The parents would author the agreement themselves, based on their needs.
“We think its quite possibly the most humane way to dissolve the family unit,” said Tamara Rounds, MSW, a faculty associate at Arizona State University’s School of Social Work. She acts as a child specialist in the collaborative divorce process. She said collaborative divorce, more than the traditional litigated divorce, is a vast improvement from a mental health perspective. She said the process helps the keep the children’s best interests paramount.
“Parents divorce parents, but you never divorce your child. I really bring the voice of the child into the room,”Rounds said. She said the collaborative divorce process also helps couples maintain a sense of dignity and respect because they are being guided by the rest of the team. “Collaboration allows people to show up and be their best in bad times because you have this team around you who are supporting you,” Rounds said.
NEGOTIATING COLLABORATIVELY
“Although the team remains supportive, the members try to keep their distance during the negotiation process. Instead, the progress of the divorce is based on the couple’s plans and decisions. None of us on a collaborative team make recommendations, tell you how things are supposed to be. The couple creates the plan,” Rounds said. “That’s a hard concept for some people. We are putting the decision back to the client. Client-centered, rather than legal-centered.”
Rounds said the negotiations can be grueling, and it takes a significant commitment from both parties to see the process through to the end. But the outcome will be better because the couple guided it, she said. “People could actually move through a difficult time in their lives and showing up as better people,” Rounds said. In a collaborative negotiation process, all of the team members must find a balanced solution to the end of the marriage, Stokamer said.
If a segment of the negotiations cannot be resolved, he said, the team member will withdraw from the case rather than allowing demands to escalate. If the couple decides they want to take their dispute to court, they have to find new attorneys, Stokamer said. “All four people are motivated to come up with a solution that they can all live with,”Stokamer said. “Everyone is focused on the same thing.Helping the couple arrive at a decision.”
The process sounds like a perfect answer to those who complain about the adversarial aspect of the divorce process.But it may not fit every couple.The costs at the outset can be steep. The couple has to hire (and pay) all of the members of the team, rather than just hiring attorneys. Rounds likens the costs of a traditional divorce to a triangle — at the top is a small up-front cost, she said. But as the divorce proceeds, like a triangle, the costs get larger and more expensive.
“What drives that expense is the emotions. The more conflictual emotions, that usual drive the costs of the case,” Rounds said.
In a collaborative divorce, the greater costs come in the beginning, Rounds said. But because you have hired a team that comes in with all of the expertise, you hire a team that helps you control that emotion. So the cost significantly reduces as the process moves through, she said. Also, couples with highly complicated negotiations may not be able to come to terms calmly, respectfully, alone, Hansen said. There are couples who just don’t have the capacity to work together with their spouse, or they don’t have the ability to communicate openly, she said. Or the spouses have a level of extreme mistrust between them, she said.
“There are people who simply need litigation,” Hansen said. Some people are so profoundly angry, fearful or mistrustful that they cannot participate effectively in a team negotiation process. She said the court process may not be the best avenue for them, either, but collaborative divorce just can’t take place without honest and respectful communication, she said.
SPEAK NOW OR FOREVER HOLD YOUR PEACE
One of the key features for collaborative is that it really helps parents going through a divorce focus on the needs and interests of their children, Hansen said. She said that involving a team that can not only navigate the legal issues, but also the mental health issues means that parents can effectively negotiate what will work for their children. “Not divvying up time with a child like a bank account,”Hansen said. “It really brings the voice of the child into the agreement.It is an incredible gift and a very loving gift for the kids.”
Stokamer said divorce itself, is an emotionally wrenching process. “A divorce is a death of a relationship. It’s like a death in the family,” Stokamer said. “There is no process that is going to make it pleasant or take away the unpleasantness.It’s a loss.”
But a couple who can use the collaborative process can have an experience that is not polarizing, he said. They can find a way to do what is best for their own family, even if that family has to break-up, he said. “We look at it as a mutual problem both husband and wife share and create,” Stokamer said. “Then we try to come up with the best possible solutions under the circumstances.”
About the author: Michele Bush Kimball has a Ph.D. in mass communication with a specialization in media law. She has spent almost 15 years in the field of journalism, and she teaches at American University in Washington, D.C. She recently won a national research award for her work.
TIPS FOR COLLABORATIVE DIVORCE:
- Be prepared to commit to the process, not matter how difficult negotiations get.
- Educate yourself on the process, as well as on members of a potential team.
- Interview professionals who are qualified to participate in collaborative divorce teams.
- Choose people with whom you are comfortable speaking, and with whom you feel a sense of trust. That may mean meeting face-to-face to make sure the match is right.
- Find collaborative divorce team members through web sites that list those who are qualified to practice, or through friends who have gone through the process.
- Some marriage counselors and attorneys might be able to make recommendations.Make sure the fees and location of teams members are amenable.
- Go into the process with an attitude that the end result will be worthwhile.
For more information about the collaborative divorce practice, see the website for the International Academy for Collaborative Practice at http://www.collaberativepractice.com or the website for Collaborative Divorce Team Trainings at http://www.collaborativedivorce.com
