Collaborative Divorce, or What’s in a Name
The Evolution of the Model and the Terminology
The innovative model of representing divorce clients developed by Stuart Webb in 1990 was called collaborative law because it promulgated collaboration between two attorneys whose traditional role was one of competition and opposition. Collaboration became essential to achieving a voluntary settlement between the two spouses who were committed to resolving all their divorce issues out of court. The emphasis was for attorneys to represent clients in a new way, in which litigation and court proceedings were no longer options. In effect, collaborative attorneys had laid down their arms and ammunition and were advocating peaceful means of resolving divorce conflict while representing their individual clients.
Before the advent of collaborative law, many family law attorneys underwent training to become mediators because they had become aware of the damaging effects of litigation on families, particularly on children. With the emergence of collaborative law, many of these lawyer-mediators were excited about the opportunity to return to the lawyer role without having to abandon their belief in interest-based negotiation and win-win solutions. The new model of collaborative law was particularly attractive to attorneys who believed in mediation but were not comfortable in the role of a neutral party, a role in which they were not permitted to give legal advice. On the other hand, mediation training and experience were excellent preparation for the new role of a non-adversarial attorney. For some attorneys who were mediating divorces, the role of a collaborative lawyer enabled an additional “family friendly” service for the client sector that was wary of mediation or those who felt insecure negotiating with their partners without having someone present who was “on their side”.
As the new model evolved, it became clear that two collaborative attorneys were not always successful in helping their clients reach agreement. The emotional state of clients and their poor communication skills appeared to be obstacles that often required intervention of mental health professionals who would work collaboratively with the two attorneys. As the model became increasingly interdisciplinary, and a team of professionals worked together with the clients, the process could no longer be labeled collaborative law. Instead, the term collaborative divorce was used to describe the combination of collaborative law plus divorce coaches, child experts and financial experts.
The Problematic Connotations of Terminology
Unfortunately, the term collaborative divorce for the new model of divorce was a very bad choice because it implies that other methods for resolving divorce are not based on collaboration. While litigated divorce is hardly collaborative, mediation is collaborative divorce par excellence. As I pointed out in a recently published commentary in Family Mediation News (Winter Issue 2011), mediation is the original collaborative process for resolving divorce with a longer history than that of the new model bearing the name. Mediation also involves collaboration among mental health professionals, attorneys, child experts and financial experts, although the other professionals are used on an ad hoc basis and are not considered inherent to the mediation process. Using the generic name (collaborative divorce) for a very specific model (collaborative law with an interdisciplinary team) does injustice to mediation and misleads the public in the way the model is presented.
It may not be “politically correct” to ask hundreds of practitioners to change the name they have been using for a decade or more, but something must be done to correct the situation. Instead of the label, collaborative lawyers, perhaps they should be called non-adversarial lawyers or non-litigating lawyers. On the global level, the IACP would also have to change its name, as would national and local organizations that were created to promote the new model.
Alternatively, collaborative divorce could be marketed as a set of various models or methodologies for resolving divorce disputes. All the collaborative, out-of-court models would be offered to the public by the same group of professionals and the clients would choose the one that best suits them. The services would include mediation, with or without party representation by non-adversarial (“collaborative”) attorneys, and various options using two non-adversarial attorneys as the basic unit (with or without divorce coaches, with or without a child expert or financial expert).
Attorney-Mediator Katherine Stoner wrote a wonderful book in its second edition (2009) called Divorce Without Court, A Guide to Mediation & Collaborative Divorce, in which she assists divorcing persons to compare the two processes and decide which is more suitable for their situation.
Mediation is a more streamlined collaborative process and likely less expensive for clients than the newer model using two non-adversarial attorneys and additional professionals. However, mediation is not suitable for all divorcing clients and is not always successful with highly emotional spouses with high level of conflict. The commitment of attorneys to stay out of court is an important element for high conflict cases and the use of divorce coaches may be essential for emotionally burdened clients. In many ways, the various collaborative models have a lot in common and often the same professionals (attorneys and mental health professionals) offer both services to divorcing couples. In a truly collaborative spirit, there should be mutual recognition and respect among professionals for the various options along the dispute resolution continuum. My suggestion is that the term “collaborative divorce” be used as a generic name for all the non-adversarial methods for assisting people with separation and divorce. A new name must be found for the methods that employ two non-adversarial (“out-of-court”) attorneys and those that include additional team members as well.
Criticism of the IACP
The International Academy of Collaborative Professionals has not adopted the generic terminology suggested above. In fact, in the websites glossary of terms, “collaborative divorce professionals” lists a number of professions but not mediators! Also the term “no court divorce” is defined as the equivalent of the collaborative model and does not mention mediation at all. Mediation and mediators are included in the very long list of terms defined for the divorcing public, but mediation is not mentioned anywhere on the website except for the glossary of terms. If the Academy is for collaborative professionals, why are mediators not mentioned? Why is the so-called collaborative divorce model presented as if it is the only option for achieving all the positive results for families mentioned on the website?
On the personal level, I would like to mention that I am not an “outsider” to the field. I was trained in the so-called collaborative divorce model and I am a member of a practice group. Nevertheless, as a long-time mediator I feel offended by the IACP’s marketing approach, both the website and the printed materials, and have not joined the organization for that reason. You cannot claim to be collaborative and behave in a competitive manner. “Walking the talk” demands a thorough rethinking of the way in which the collaborative model is being marketed and a re-labeling of the expanded model of collaborative law. Collaborative divorce is a broad term that includes many variants which should be compared and contrasted so that divorcing persons can make an informed choice.
Stoner, Katherine E. (2009): Divorce Without Court. A Guide to Mediation & Collaborative Divorce (Second Edition), Nolo.
Zaidel, Susan (2011): Will the Real “Collaborative Divorce” Please Stand Up? Family Mediation News, Winter 2011, 6-7, 12.
Susan Zaidel, Ph.D., is a clinical psychologist, family therapist and family mediator in private practice in Haifa and Tel Aviv, Israel. She was trained in the collaborative divorce model in 2009 and is a member of an emerging practice group in Haifa. Susan is the author of several books about mediation for the Israeli public, one in English (Divorce with Respect, 1991) and the others in Hebrew. She was a pioneer in teaching and training in divorce mediation and in generic mediation skills throughout Israel.