'Collaborative Divorce' Is Collaborative in Name Only

05/15/2014 11:27 am ET | Updated Jul 12, 2014

On May 2, 2014, CNBC published an article by Deborah Nason titled "Collaborative divorce can ease emotional, economic stress." While it is a wonderful article, it contained a great deal of inaccuracies, in my opinion.

First of all, it is misleading to refer to collaborative divorce as a peaceful resolution. To me, collaborative divorce is a more constructive approach to conflict, but I would hardly refer to it as tranquil. This distinction is extremely important because words having meaning. By misleading the public into believing that collaborative divorce is a peaceful resolution process, it creates unreasonable expectations and limits interest in the process to low conflict situations.

As Stephen Willis, Ph.D. said in his book titled Power through Collaboration: When to Collaborate, Negotiate, or Dominate!:

When it is imperative to achieve the best possible outcome, conflict needs to be faced and managed productively. The best approach, for collaborative situations or otherwise, is to make conflict purposeful and productive, and harness its potential for creating innovative options and solutions. Collaboration takes diverse viewpoints and progresses from tolerating them to understanding, respecting, balancing, integrating, and ultimately synthesizing them.... In general, collaboration allows for better use and management of conflict. It creates a safer climate in which to deal directly with sensitive and divisive issues. Collaborators tend to have greater toleration for differences of opinion, greater ability working around or resolving people related conflicts, and staying focused on what really needs to be accomplished.... The more difficult, complex, and vital the task is, the more essential as well as advantageous collaboration of empowered individuals actually is.

It should be noted that Dr. Willis is an expert on the subject of collaboration. He has written two books on the subject. One is titled Power through Collaboration: The Formula for Success in Challenging Situations and the other is titled Power through Collaboration: When to Collaborate, Negotiate, or Dominate! He is the founder and moderator of the Power through Collaboration LinkedIn group and also consults on the subject.

Second, if collaborative divorce is about negotiation, it should be properly called "cooperative divorce." Dr. Willis defines collaboration as follows: "Collaboration is a subset of goal-directed cooperative behavior in which people who mutually care about achieving each other's goals work willingly and freely to achieve each other's goals." Negotiation, on the other hand, "is a subset of goal-directed cooperative behavior in which people who are primarily focused upon achieving their own goals develop agreements to assist or allow each other to achieve some goals in exchange for foregoing other goals." Words have meaning and are powerful; therefore, we shouldn't use words that don't apply properly because it causes confusion and unintended negative consequences. As Dr. Willis says, "The typical picture that people have of Collaboration is actually Negotiation, which is the most common form of cooperation. The typical Cooperator is actually a negotiator even though they often describe themselves as collaborative."

The biggest problem I have with the collaborative divorce process is that the professionals involved don't tend to be collaborative and don't even know what it means to be collaborative. According to Dr. Willis, "Effective collaboration does begin with and depend upon communication and shared understanding, starting especially with a shared understanding about the meaning of collaboration and what it entails." As I have said before, you can call a process 'Collaborative Divorce,' but without 'collaboration,' what the hell is it?

Third, the "special training" the professionals in collaborative divorce receive is completion of a 3-day interdisciplinary training program. Dr. Willis' "working rule of thumb is that genuine aspiration can move a person's PtC Type up by a half or a full range with just a modest yet sincere effort. To achieve a larger upgrade requires transformative events, compelling motivation, and genuine commitment, plus a lot of hard work to break old habits and replace them with a more collaborative way of seeing and doing. Often professional coaching is needed as well." In fact, in their book titled Navigating Emotional Currents in Collaborative Divorce, Kate Scharff, M.S.W. and Lisa Herrick, Ph.D. said the following:

The inevitability of professional-owned countertransference is a good argument for each of us doing the hard work of getting to know ourselves well. Good psychotherapists know they must undergo significant psychotherapy themselves before they can be effective clinicians. The authors of this book would go so far as to suggest that personal psychotherapy should be placed alongside a basic Collaborative training as a prerequisite for practice.

The PtC types are as follows: (1) Collaborator; (2) Cooperator; (3) Competitor; (4) Enslaver; and (5) Predator. In my review of Dr. Willis' book, I stated that the personality type for attorneys tends to fall in the Competitor category or even further down on that scale. In response to my review of his book, Dr. Willis said, "Mark, your assessment of attorneys as being of the 'Competitor or worse' type is probably the prevailing viewpoint as well. For 'Collaborative Divorce' that seems especially troubling. Corporate clients seeking out attorneys who are Competitor, Enslaver, or Predator types does not seem incongruous. Presumably the client is knowledgeable and capable of adequately managing the competitive or predatory blowback, or even is of the same type. Presumably, the effective practice of collaborative divorce seems to demand that the attorneys be of the Cooperator or Collaborator types, as well as operating by the more collaborative motivations. For example, in a divorce situation in which the 'best interests of the children' is the espoused guiding principle, an attorney being a 'Competitor or worse' operating via Achieve Own Goals motivation is incongruous."

As Dr. Willis said in Power through Collaboration - When to Collaborate, Negotiate, or Dominate!, "Predators, Enslavers, and Competitors do not wake up one day inspired and instantaneously become capable of being Cooperators, much less Collaborators.... Type is a significant factor in determining whether investing in collaboration will pay off. Some types are better to collaborate with, and some types are better not to collaborate with. Neglecting to ascertain PtC Type can result in wasting precious time and energy. With some types, collaboration can be not just counterproductive, but even downright dangerous."

Fourth, the CNBC article provides in pertinent part as follows: "Collaborative divorce differs from mediation, where the couple works only with one neutral party--the mediator. In the collaborative process, each spouse has an attorney who looks out for the best interests of his or her client, while working within a collaborative framework." I work as a consulting attorney on mediated cases and when I mediate, I prefer when the clients retain mediation-friendly attorneys. As Diana Mercer said in her comment to my article titled What Is "Collaborative Divorce" Without Collaboration?, a "mediation-friendly" attorney understands their client's needs, interests, values and goals, and makes sure that the agreement accomplishes their client's desired result. When the right attorneys are involved, this also addresses power imbalance issues. Financial neutrals and other such professionals can be brought into any process, not just collaborative divorce.

Moreover, as Dr. Willis says:

Collaboration Is Not Just Using Project Management, Teamwork, Or Collaborative Tools. Although valuable, such are not synonymous with collaboration. Neither is the use of collaborative technologies and processes.... People in conflict can strategically engage in seemingly collaborative behavior and processes, but in reality be working against the other parties or trying to gain an unfair advantage. People in such situations often mistakenly attribute poor results to the failure of a collaboration that was only a façade and never actually existed.... Just about every collaborative appearing behavior and process can readily be part of non-collaboration, and sometimes even part of predation. The Nazi regime, for example, was infamous for its project management system.

Fifth, 1 of the "4 key elements of collaborative practice [is] ... a balanced commitment to respect both parties' shared goals." In fact, the source of that information was the International Academy of Collaborative Professionals. However, according to Dr. Willis, "Collaboration does not even require common goals and mutual benefit, despite common belief to the contrary. Collaboration can occur even when goals being worked on are not shared or of direct mutual benefit." In other words, one of the "4 key elements of collaborative practice" is not even necessary for collaboration. The reason for this mistake is that the whole concept of collaborative divorce is based upon an erroneous understanding of what collaboration really means. Thus, the results are not what they would be if it were based upon true collaboration. What they describe as collaboration is nothing more than "cooperation."

Sixth, it has long been recognized that the meaning of words influences human behavior. However, as Dr. Willis says, "Collaboration sometimes fosters greater cohesion and harmony, but that does not mean having to be polite, nice, and agreeable to everyone all the time. The absence of conflict is neither required for nor indicative of collaboration, and can sometimes indicate the opposite.... When conflict avoidance prevents issues from being addressed, a façade of harmony can be detrimental. As Edwin Land, the co-founder of the Polaroid Corporation stated, 'Politeness is the poison of collaboration.' Conversely, polite and agreeable behavior can actually be a deception. A common predator tactic is to carefully restrain emotions and behavior so as not to spook the quarry and precipitate outright 'fight or flight' which would jeopardize an advantageous position." As I have said before, terminology and tone alone do not make something or someone collaborative or a 'peacemaker.'

Seventh, as the article states, "'With collaborative divorce, the focus is on win-win.'" According to Dr. Willis, "'Win-win outcomes are a product of negotiation in which the parties' interests take center stage, and their relative power determines the outcome. A 'win-win' occurs when the interests of the parties are satisfied in proportion to their power. The weaker parties get a sufficient amount relative to what they expect their power could get them. The more powerful parties give more than they need to relative to their power, but benefit from less cost, struggle, or backlash. Highly touted 'win-win' agreements often are terrible outcomes compared to what is capable of being accomplished and what is needed.... The Mutual Success Dynamic goes beyond the Win-Win Dynamic as a mode of cooperation. It takes into account the interests and goals of the parties, but gives precedence to what needs to be accomplished. The Mutual Success Dynamic seeks an outcome that is optimal for the circumstances and that maximizes the overall success of all the stakeholders. Mutual Success starts with and is more about mission than interests and goals of particular parties.... 'Win-win' negotiation works within the reality and limits of the parties' interest and power, and what they will accept. 'Mutual success' works within the reality and limits of what the parties are capable of accomplishing.... Interests of involved parties need to be considered and met. Compromise is always necessary. However, compromise based on the parties' interests leaves out a lot more than compromise based on what needs to and can be done. The latter takes into account and satisfies a lot more than the former."

I realize that this article contains much food for thought, but my concerns are real and have serious consequences. Unfortunately, my experiences with the "collaborative law" community are not unique. In fact, I was recently asked to contribute to a chapter in an upcoming book regarding the "story of collaborative practice." I respectfully declined the opportunity because I cannot promote the process at this point. My colleague responded as follows: "Mark - I hear you. My own 'collaborative community' has been anything but. It's a struggle to keep supporting a method when some of the practitioners are so backbiting. It's disheartening and contrary to the principles of the practice. Keep doing what you do, Mark. I appreciate your contributions to our integrative attorney movement!"

Sadly, I hear similar comments from many attorneys who have practiced Collaborative Divorce. For example, one of my colleagues posted the following comment on my Facebook page: "I have found the collaborative lawyers harder to deal with than the reasonable and skilled regular family law lawyers. I could say more, but why bother. I'm preaching to those in the know, and to others, they will simply hear my words as antagonistic."

Furthermore, Andrea Vacca recently published an article titled Questions to Ask Before Hiring Your Collaborative Divorce Attorney. She shared that article in various LinkedIn groups in a discussion titled Is your divorce attorney really a collaborative professional?

Susan J. Friedman, LCSW, BCD, DVS commented to the post as follows: "A timely, excellent post and discussion as I find there are many collaboratively trained professionals who have not made the emotional paradigm shift; I call them wolves in sheep's clothing and that goes for the financial and mental health professionals as well. Here in NJ we are excited that legislation is proposed and moving through the process. While this is exciting it is clear that it will not protect clients and or other professionals from working with those professionals who have not made the paradigm shift. Woody Mosten's approach to his clients is open and transparent. Unfortunately not all professionals make that clear to their prospective clients and the process can quickly go astray making much more work for everyone and puts settlement in jeopardy. I am always looking for new ways to assess the mindset of professionals on the team. Take care."

I made the following comment in that discussion: "I am very pleased to see that people are beginning to talk about the elephant in the room. There are far more questions than just the few you referenced in your article, but there is a difference between calling yourself a 'collaborative professional' and being collaborative. Furthermore, what about those who are actually collaborative, but happen to be lacking when it comes to the skill-set for their actual profession? For example, if someone is a 'collaborative family law attorney,' what if they are collaborative, but their reputation as a family law attorney is poor? Do they suddenly gain that skill-set through osmosis? In addition, just because someone is a member of one or more collaborative practice groups is little indication of their 'collaborative' mindset. First, the requirements for any given practice group differ. Some don't even require mediation training and some don't have any continuing education requirement. Second, just because someone is involved in groups that do have such requirements does not in and of itself mean that they are 'collaborative.' Lord knows, I have left a number of collaborative groups because I didn't feel that the members 'got it' and VERY little, if any, collaborative work was being generated by them as a result. Furthermore, I have written about closed collaborative practice groups in the past and my experience with one in particular. It seems to me that the conduct of that group demonstrated the fact that the members don't 'get it.'"

In addition, I recently received the following email from one of my colleagues: "I teach Collaborative Divorce at UMD law school, yet I am so disgusted with the direction that practice is heading. I think there is more of an opportunity to make a difference in the practice of family law by working on thoughtfulness and the principles underlying collaborative practice within the mainstream family law community than to continue within a collaborative law community that seems more intent on patting itself on the back and devising a way for all of us to make more money than in really helping our clients. Sorry for the run-on sentence." I responded as follows: "The collaborative law community doesn't even know what collaboration is - at least in my geographic area." She replied, "Not in mine either. In fact, the collaborative cases I have are causing me and my clients more stress than my 'regular' ones - and it's as much because of the interaction of the professionals as the clients.

It seems to me that as currently practiced, "Collaborative Divorce" is collaborative in name only and at best should be called "Cooperative Divorce."