Over the last 25 years, Americans have been on the cutting edge of advancements in disciplines such as medicine. 25 years ago, a back surgery required long hospital stays, metal plates, and months of recovery. Today, surgeons deliver "minimally-invasive" procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the stone age when it comes to the law? More particularly, why do so many people still use rely on flint knives and bear skins when getting a divorce? The court system simply was never designed to resolve the increasingly complex dynamics of family conflict.
Even in bitter divorces, husbands and wives usually want to do the right thing. They just disagree about what the "right thing" is. But our judicial system, by its very nature, creates only two types of participants: winners and losers. That type of system usually serves the public interest well in matters of criminal acts and contract disputes. However, when dealing with the disintegration of a family unit, both participants have already lost before they ever step into the courtroom: Two people who once loved each other enough to get married in the first place have failed in their marriage. Their children are in turmoil, and their finances are strained, if not in complete ruin. And thanks in large measure to the law's "one-court-fits-all" approach to divorce, the spouses often feel compelled to hire professional gladiators to annihilate the other person. Whether they actually wind up trying the case to a judge or jury, or settle on the courthouse steps, no one is spared the emotional or financial devastation of the experience.
Thankfully, today there is a minimally-invasive procedure that is revolutionizing the way couples dissolve their marriages. Collaborative Law is the 21st Century's cutting-edge alternative method of resolving such disputes without the use of a judge, jury or even a courtroom. This unique approach allows the participants and their respective attorneys to meet privately and work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner.
The Collaborative Law model transcends traditional notions of mediation and actually represents a complete paradigm shift away from litigation. The threat of the courtroom is effectively eliminated at the very beginning, for the participants and their attorney sign a written contract, called a "Participation Agreement," which serves both as a rule book governing the conduct of the participants and also as a commitment to keep the case out of the courtroom. Just imagine -- lawyers that cannot go to court! And if either party later reneges on the agreement, the "damages" clause of the agreement requires that both attorneys withdraw from the case. While this might seem a strange notion, the contractual threat of kicking the lawyers off the case actually serves as the Super Glue that keeps the case moving forward collaboratively--even when the going gets tough.
The best evidence for the collaborative model's success comes from those who have actually gone through it. Stuart Webb wrote in his book, The Collaborative Way to Divorce, that most couples who go through the Collaborative method instead of litigation come through the process satisfied with the results. Why? The answer is so simple that it masks the brilliance of the model: (i) Couples retain greater control over the outcome; (ii) the process is generally less expensive than going to court; and (iii) it better insulates the children from the collateral damage caused by divorce.
The results are coming in across the nation and even beyond our shores. People facing divorce are choosing Collaborative Law in increasing numbers and most have very positive things to say about the experience. Better still, most participants rarely need to file a subsequent enforcement action, since participants are usually more apt to follow rules that they themselves have created.
Collaborative Law isn't a fit for every case. It's not well-suited for cases involving substance abuse, domestic violence, or mental illness. Some also suggest that the Collaborative Law model cannot adequately deal with a party who is willing to lie or conceal matters of substance. On the other hand, as Pauline Tesler notes in her book, Collaborative Divorce, "Litigation doesn't make a liar honest, cure an addict, or make an immature spouse grow up."
Ultimately, the question divorcing couples must answer is this: Do you want a minimally-invasive divorce using the most advanced tools and procedures available today? Or, would you prefer to stick with the stone knives and bear skins?
Talia Katz
IACP Executive Director
The more I am exposed to the model, the more I feel that there are a small number of people the model works for. When it works, it is awesome, when it doesn't, it is equally as devastating as a badly litigated divorce.
If you had entitled your article, "a kinder, gentler approach," or a more "mature divorce," I would not have argued your point, but to say, "minimally invasive," I think is misleading. Just my two cents.
In my 17 years as a divorce surgeon (ok, I acknowledge crossing the literary rubicon with that one) l have used all sorts of tools to help couples end their marriages: Trials, Hearings, depositions, private investigators, written discovery, enforcement actions, settlement conferences, and even mediations. They are all blunt, rusty instruments to one degree or another. Yes, they can get the job done, but with few exceptions, the clients never fully recover -- financially or emotionally -- from the procedure.
I hope your particular experiences in the cases you mentioned won't have a chilling effect on your view of Collaborative Law's potential as an alternative, less destructive approach.