Will the Real “Collaborative Divorce” Please Stand Up
Those of us who work in conflict resolution, as well as those who focus on communication, are well aware of the power of words, the importance of our choice of words and the use of reframing to impact on attitudes and other mental responses to life experiences. The use of the words collaborative divorce to describe a particular service now offered to the public in the United States and other countries as well troubled me from the start, but only recently did I fully “see the light” understand why.
I have been following the “collaborative law” development ever since Phyllis Tesler published her first book on the subject through the American Bar Association (Collaborative Law. Achieving Effective Resolution in Divorce without Litigation – published in 2001) and I must say I was impressed by the movement for family attorneys to lay down their arms and commit themselves to help clients reach a negotiated divorce agreement without the use of court orders and lawsuits. The movement began with the work of a Minnesota family lawyer, Stuart Webb, in 1990. Although I imagined that for some attorneys, the dramatic change in tactics was a genuine response to the research about the negative impact conflict has on the children of divorcing parents, I also sensed that collaborative divorce was a way for attorneys to reclaim their central role in divorce and to weaken the arguments in favor of mediation, which had emerged in the 1980’s as an alternative to divorce litigation. Collaborative lawyers also offered an alternative to litigation – one in which each spouse retains his own lawyer. The use of the word “collaborative” for lawyers who cooperated for the joint benefit of their clients seemed appropriate at the time, as it was limited to a model of law practice.
However, when it became clear that the 4-way negotiations (two attorneys, two spouses) were not always successful, one option offered was the use of a neutral mediator to assist when negotiations were not leading to resolution. Another option emerged – the use mental health professionals as “divorce coaches” for the two spouses, particularly when the high level of conflict seemed to be fueled by emotional reactions and poor communication skills. That was how “collaborative law” evolved into a broader model that was called “collaborative divorce”, with emphasis on collaboration among an interdisciplinary team of divorce experts (attorneys, mental health professionals and financial experts). The term “collaborative practitioners” has been used to describe attorneys and others who work in the context of a team, whether the subject-matter is divorce or any other kind of conflict. An international association was formed after several years of training in the model had penetrated Great Britain and other European countries (International Academy of Collaborative Professionals).
After the publication of Phyllis Tesler’s second book about collaborative divorce, written for the general public together with Peggy Thompson (Collaborative Divorce. The revolutionary new way to restructure your family, resolve legal issues, and move on with your life. – published in 2006), in 2008 I wrote a critical article about the collaborative divorce movement, citing its competitive marketing which often slighted and misrepresented mediation (How Collaborative is Collaborative Divorce? Published in the Summer 2008 of Family Mediation News ). A year later, partly through my own connections with a Canadian mediator and divorce coach, the first training in collaborative divorce took place in Tel Aviv (Israel) and I decided to participate with an open mind. Phyllis Tesler was one of the trainers, together with Yuval Berger, a social worker and therapist. A year following the training, I was invited to join a practice group in my own city (Haifa) – a small group of attorneys and family therapists who had participated in the training and were trying to develop a website and offer the new service to the divorcing population in the northern part of Israel. I began to attend the monthly meetings and to participate in the discussions, but it was clear to everyone that I was very ambivalent about the model.
In this particular practice group, all the lawyers except one had training and many years of experience in divorce mediation, and we all agreed that mediation is a less expensive alternative for most of the clients we see as mediators, and that the full model of collaborative divorce is both prohibitively expensive and unnecessary for the average divorcing couple in Israel. We also tend to agree that the collaborative model of full legal representation for the two spouses is very important to many people who divorce and that the commitment to avoid the court system is extremely important for the welfare of families, even in high conflict cases that would never work things out in mediation without the commitment to stay out of court. We continued to pursue the goal of offering the new service (“collaborative divorce”) with the belief that the new model fills an important function for highly emotional and highly conflictual couples – those who are least likely to succeed in mediation.
Yet I was very troubled every time I read brochures and websites about the collaborative alternative and while we pursued a name for our practice group. Why was I so troubled? Because just about everything that was written about the model was true also for mediation! The real issue – that the attorneys practice collaborative law instead of the traditional model of law – was presented along with all the advantages of resolving divorce out of court, such as less stress, focus on the needs of the children, use of experts, etc. The various names we discussed could have been names for a group of mediators as well, as the concept we wanted to market was common to both mediation and the collaborative model - the new service we wanted to offer.
The group remained stuck on the choice of a name and I remained stuck in my ambivalence about promoting a service that was allegedly “new” and emphasized collaboration. In that context, I recently agreed to give a talk at a local mediation conference and chose the topic of comparing the collaborative model and mediation – which process suits whom, both from the standpoint of the professionals and from the standpoint of the clients. I prepared a table of the various alternatives – direct negotiations between the spouses, mediation, collaborative divorce and litigation (four processes for resolving divorce issues) – and a list of characteristics of couples who divorce, such as degree of trust, ability to communicate, degree of conflict, etc. While looking at the alternative processes, it became clear to me why I have been so troubled by the new model and it all fell in place: the use of the words “collaborative divorce” for the new model alone is a blatant mistake! Mediation is a form of collaborative divorce, no less so than the new model, and even direct negotiations between spouses is a form of collaborative divorce. The new model should have remained “collaborative law”, even if there is an add-on of an interdisciplinary team. The emphasis on collaboration – whether between the spouses or between various professionals – is not unique to the new model at all! In fact, the name tends to mislead the public into thinking that only that model involves collaboration. This error must be corrected. The term collaborative divorce should be used by professionals to describe all the methods for resolving divorce issues in a collaborative manner.
Collaborative divorce includes mediation as well as the many variations of collaborative law that have evolved over the last decade. It is of interest to note that the full model of collaborative practice, involving the use of two divorce coaches, a child expert and a financial expert who work collaboratively with two collaborative attorneys, has rarely been implemented in actual practice. In a report by the International Academy of Collaborative Professionals reported on their website (www.collaborativepractice.com), which examined cases handled by 195 professionals during an 18-month period, 45 % of the cases were resolved using two collaborative attorneys and no additional experts. A financial professional was used in 47% of the cases, together with the two attorneys. Mediators were used in only 3% of all reported cases. Among the cases in which mental health professionals were used as part of the team (42% of the reported cases), 38% used one mental health professional (either as a joint coach for both spouses or as a child expert, and that occurred in only 16% of all cases reported), 28% involved two mental health professionals (12% of all cases reported) and 17% involved three mental health professionals (apparently two divorce coaches and a child expert), which amounts to 7% of the total cases reported. The dominance of the legal professionals in actual practice is quite clear, while mental health professionals are used as an important adjunct in less than half of the cases (42%). The use of mental health professionals tends to be more minimal than the full model presented to the public – often one divorce coach is used, rather than one for each spouse, and the divorce coach often is used also as an expert regarding the children instead of involving a separate mental health professional for that role. These data show that the full and complex model presented initially is not really needed for the model to succeed (86% of all reported cases settled with an agreement on all issues, 3% of cases reconciled and 1% terminated with partial agreement).
The above results of a survey of the members of the IACP are supportive of my belief that there are many paths to resolution of divorce issues which are all characterized by a commitment to resolve the issues out of court and by the use of a variety of divorce professionals in accordance with the wishes and needs of the divorcing couple. Mediation is another path and one in which the mediator may be a divorce attorney, a mental health professional or a well-trained person from another walk of life. Mediators have always made use of financial experts and child experts as needed, depending on the particular case. So clearly all the methods and models are forms of collaborative divorce and are all viable options to be offered to and chosen by the divorcing population.
I suggest that those who offer their services as “collaborative professionals” make it clear that mediation is one of the collaborative methods offered and that collaborative lawyers can be used in a range of options, including mediation. The era of offering “collaborative divorce” as distinct from mediation should end. Neither model is better or worse than the other and there are many variations of both models. The divorcing spouses should receive honest and full information about all the variations so that they may choose what best suits their situation.