How Collaborative is Collaborative Divorce
Published in the Summer 2008 edition of Family Mediation News, newsletter of the family mediation section of the Association of Conflict Resolution.
When I read about collaborative law several years ago, I found the idea appealing, as it meant that family law attorneys were accepting the idea of resolving divorce issues out of court and through agreement, as opposed to using adversarial litigation. At the time, however, I also suspected that the collaborative law movement was an attempt on the part of the legal profession to regain control of the divorce market, perhaps because mediation had had a negative impact on the central role that attorneys used to have in the divorce process. While family mediators come from both the mental health professions and the legal profession, the core of “Collaborative Law” is the exclusive domain of lawyers! Nevertheless, my feeling was that a more family-friendly manner of lawyering would be better than the traditional adversarial approach, in any case. Moreover, it was suggested at that time that the use of a neutral mediator would be part of the collaborative law process in cases in which the 4-way conferences (two parties and two lawyers) were not successful in resolving a dispute. This assured me that the role of mediation in resolving disputes was being acknowledged and respected by the collaborative law model.
My enthusiasm about the new model of “lawyering” led me to write two articles on the topic that were published in Israeli law journals (in 2002), but the idea seemed to fall upon deaf ears. More recently, a number of Israeli family law attorneys who practice mediation have shown interest in the practice of “Collaborative Divorce,” so I became curious about this latest model and the people who are marketing it.
I read Pauline Tesler and Peggy Thompson’s 2006 book, Collaborative Divorce, to get the inside story of what they describe in the subtitle as “The revolutionary new way to restructure your family, resolve legal issues, and move on with your life.” The book is intended for the general divorcing public—not for divorce professionals. Although I was disappointed at the simplistic level of writing, the authors are not to be blamed for addressing the layperson, a task they accomplished quite adeptly. However, I found the book quite offensive in the way they presented the method of collaborative divorce (the “cure-all” for the evils of divorce) and the negative descriptions of other means of resolving divorce issues, including mediation. It was an overly simplistic, black and white description of “good guys” (collaborative attorneys and coaches) and “bad guys” (everyone else, especially the “old-style” divorce attorneys). Although mediation was not exactly in the category of the “bad guys”, it was presented inaccurately and in a negative light as lacking all the good parts that only collaborative divorce offers its clients. Is this the authors’ idea of interdisciplinary collaboration?
There are only three pages on which mediation is mentioned at all and then, only as an inadequate process in contrast to collaborative divorce. I wonder how many mediators would agree with the following descriptions of mediation: “No one teaches you how to improve your communications with your spouse during or after the divorce or how to be a more focused and effective participant in negotiations” (p. 33); “No one helps the children express their needs and wishes or teaches you or your children what you need to know about the stresses and challenges children generally, and your children specifically, experience during divorce. So as long as you and your partner reach agreement about dividing up time with your child, the job is done, whether or not the arrangement is likely to work well for your child” (p.34). The authors dismiss mediation as inadequate and never acknowledge that mediators make use of outside experts when needed, as part and parcel of a thorough mediation process. What kind of collaborative approach to divorce is that? I was left wondering if the new collaborative lawyer was merely a disguise for the traditional, competitive, adversarial lawyer—a new tactic to lure the public away from mediation and back into the lawyers’ den, only this time a den with chairs for mental health professionals in the role of divorce coaches and experts in children.
I understand that there are many variants of the collaborative divorce model sprouting up across North America and beyond and, perhaps, they are less “adversarial” in their marketing techniques. One website that I checked followed the Tesler-Thompson model, with the use of two divorce coaches, two lawyers, a child expert and a financial expert, all of whom claim to have training in mediation. Their website compares collaborative divorce with mediation, stating that ”Both processes use problem-solving techniques to resolve disputes, but in collaborative divorce the neutral third party is eliminated and replaced with counsel that use mediation techniques to assist with resolving issues and give legal advice at the same time” (italics mine). So, instead of one neutral mediator, there are two lawyer-mediators who prefer to wear their “lawyer hats” because they like to give advice to their individual clients! They use mediator techniques, but remain one-sided lawyers who do their best to avoid going to court (the collaborative model stipulates that they lose their clients if litigation becomes the chosen path for either client). No wonder they may still need a mediator, as the set-up remains somewhat adversarial by the very nature of having legal representation for each party. Even if an external mediator is not needed, the parties are unwittingly employing the services of six mediators instead of just one, although their official titles and roles are not as mediators but as divorce coaches, attorneys, child expert and financial expert.
From the standpoint of the mediation community, the addition of divorce coaches and other experts in the collaborative divorce model is certainly preferable to the simpler model of collaborative law, because there is now work for them too. In collaborative divorce, mediators from the mental health professions have “equal opportunity” to serve the divorcing clients (although their title and job description is restricted to their professional expertise in dealing with the emotional side of divorce)—a situation which can be viewed as a win-win solution to the competition among the mediators from the various professions. However, the question remains as to how necessary it is for the clients they serve to have two, four, five or six mediators with different areas of expertise. Moreover, the model seems to be a return to the pre-mediation era, in which attorneys gave legal advice and the mental health practitioners helped the clients cope with the emotional crisis, effective communication and improved parenting skills.
Apart from the financial cost of so many professionals (all in private practice), there seems to be an underlying message that two divorcing adults are incapable of doing anything right without massive and continual professional assistance. They are presented as the helpless “victims” of emotions, requiring ongoing assistance and hand-holding to make sure the outcome of divorce will be good for all members of the family. In contrast, mediation is based on a view of the divorcing partners as competent people who are able to obtain and process the relevant information with a little guidance, and who are capable of making good decisions for themselves and their children. Mediators may utilize additional experts when necessary, but the emphasis is on empowering the clients.
Clearly, not all divorcing couples and families are alike, and different people need different services. The collaborative divorce approach has many valuable aspects and is likely to serve clients well. However, I am concerned that the approach does an injustice to a large number of divorcing couples who are not in need of a team of expert consultants from beginning to end. Apparently, not all models of collaborative divorce are built on such a full team of professionals, but the involvement of two collaborative attorneys is essential to the model. While one divorce coach may serve both parties and may also serve as the child expert, each party must retain his or her own attorney. This two-attorney model is clearly a residual from the adversarial model of divorce, even though one legal expert is sufficient in the context of a non-adversarial approach to resolving divorce issues (the attorney’s role is to provide information about the law, to write the legal agreement and process it in court).
Why not offer co-mediation teams that include one mediator with psychological training and one mediator with legal training, and call it “collaborative divorce”? Why not have just one mediator, who uses external experts (financial, children’s issues) as needed? In fact, mediation is often conducted between two spouses who each have their own attorney to consult with, so what is so “revolutionary” or new about collaborative divorce?
The mediation process was developed as an alternative to the adversarial method of divorce and it welcomed all professionals who were concerned about the well-being of families. Mediation encouraged a collaborative divorce process from the beginning—collaboration of attorneys and other experts for the common goal of assisting divorcing families to reach agreements that considered the needs and the welfare of both parties and their children. Some families require only minimal assistance, while most require guidance and information, and some families require a battery of professionals to get the job done. Mediation is not the best or the most suitable method for all cases, nor are the various collaborative models necessary or cure-alls for the entire divorcing population. I hope that the “pushers” of collaborative divorce will be more modest in their claims and more accurate in their descriptions of the mediation process so that potential users can choose the path that suits their needs.
Susan Zaidel, Ph.D., is a clinical psychologist, family therapist and family mediator in private practice in Haifa and Tel-Aviv, Israel. She is the author of books in Hebrew about divorce mediation in Israel for professionals and for the divorcing population.