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What Is "Collaborative Divorce" Without Collaboration?

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The concept of collaborative divorce resonates deeply with me. As I have written in the past, "Collaborative divorce truly does incorporate all of the skills needed to increase the likelihood of a successful outcome for the clients and their family through its interdisciplinary team approach to divorce. It is a family systems and service based approach, meaning that there are value-added inputs offered to the families that only an interdisciplinary approach can provide." Although I have found that theory and reality were not necessarily consistent, up until now, I have been diplomatic when expressing my concerns because I did not want to publish anything that would potentially harm the collaborative divorce movement.

Nevertheless, I first began to express my concerns in a Keynote Speech I delivered at the "Divorce Expo" in Detroit, Michigan on March 23, 2012. That speech was later published by the World of Collaborative Practice Magazine and titled, "Are You Facilitating the Creation of a Post-Divorce Functional or Dysfunctional Family?" In any event, my concerns regarding collaborative divorce were set forth as follows:

"As with any team, a Collaborative Team is only as strong as its weakest member. Therefore, selecting team members who are both very skilled in their respective discipline and who work well with the other members of the team is a critical element of collaborative practice. Also, be sure to draft members onto this team only if you have enough confidence in their credentials and abilities to follow their advice, even if the advice is not something you want to hear.

As Collaborative Divorce continues to gain momentum, we need quality control for the practitioners, because not everyone is appropriately suited for the process, and therefore do more damage than good. This is true for these entering the field, merely because it is a growing market, those who are not self-aware that they are not collaborative, and those who mean well but do not hone their skills. We therefore need to have systems in place to address these problems.

As my esteemed colleague, Pauline Tesler told me:

The most significant variable affecting whether a divorce will be managed well, or whether it will slide into high conflict litigation is who the parties select as their lawyers... You can lead a lawyer to consensual dispute resolution, but you can't make him or her into a facilitator of deep resolution without changing the lawyers' understanding of what it means to be a divorce lawyer, venturing into the sacred space of primary pair bonds unraveling.

In October 2012, I was contacted by an attorney in Maryland, who asked if I would be interested in presenting on the topic of Collaborative Divorce at the American Bar Association Family Law Spring 2013 CLE Conference. The title of the program was "Navigating the Emotional Waters within Collaborative Family Law." I was thrilled to have been asked to present at that conference, especially since I had never before attended any ABA events. Since I viewed it as such an amazing opportunity, I was determined to produce outstanding material for the program. It took me over 150 hours to write my article, but I was very proud of the result. Moreover, The World of Collaborative Practice Magazine was so impressed with the article, that they published it on March 1, 2013, more than one month before the ABA conference. The comments people posted after reading my article allowed me to realize that I had captured the essence of collaborative law. That being said, in that article, I alluded to some issues I had with collaborative divorce.

One such concern was expressed by me as follows:

One would expect that since collaborative professionals are using mediation techniques in a multi-disciplinary team approach to dispute resolution, the professionals involved would be trained in both mediation and in the collaborative process. Unfortunately, as with many things in life, it is not wise to make assumptions. Some collaborative divorce organizations require their members to receive training in collaborative practice, mediation, negotiation and communication skills, and annual continuing education. However, such organizations are the exception rather than the rule. Therefore, it is incumbent upon the clients to ensure that each of the professionals involved on their team have such training.

Another concern of mine was set forth by stating that: "A concept known as 'collaboration' happens to be based upon 'genuine communication.'" I then included the following quote from an article by Daniel Burrus titled, "Are You Cooperating Or Collaborating? The Answer Will Increasingly Influence Your Success":

The key to successfully co-creating is a strong focus on collaboration... Cooperating is a much lower level activity than collaborating. Knowing the difference can make all the difference in the results you get with your business partners. You cooperate because you have to; you collaborate because you want to. Cooperation is based on a scarcity mindset; it's about protecting and defending your piece of the pie. Collaboration is based on an abundance mindset, working together to create a bigger pie for all... When you and I cooperate, we work separately and make accommodations for each other. When we collaborate, we are not simply making room for each other's creations; we are co-creating the future together. Collaboration is a function of genuine communication... Communication fuels collaboration, which fuels more communication, which fuels more collaboration... There has been a lot of cooperation between competing players in the industry, but not true collaboration. It's still protect and defend, fiefdoms and egos, legacy thinking -- all the things that keep abundance from happening.

Another concern had to do with specialization of labor versus duplication of effort. I expressed it as follows:

Economies of scale occur when costs decrease as a result of great efficiency. 'Economies of scale arise due to increased specialization of labor, management, plant and equipment.' (Gregory, 2005) When 'workers do more specific tasks, they can become very proficient in those tasks', which enables 'greater efficiency.' (Pettinger)... [T]he concept involves specialization, not duplication.

In addition, I said, "Of course, all of this is based upon the assumption that the divorce coach is an appropriate fit for the particular client and case. The same can be said for the suitability of an attorney retained as well."

On January 9, 2013, I was notified that I had been "selected to participate in a new Aspatore Inside the Minds book, published by Thomson Reuters Westlaw. The book is called Strategies for Family Law in California." I considered it such an honor that I immediately thanked them for the opportunity they had afforded me. The chapter I contributed was titled "A Comparison of Dispute Resolution Methods Available in Family Law Matters." They returned the edited chapter to me for revision and were apparently very interested in my personal experience when it came to collaborative divorce. In fact, they asked me the following questions: "What is your experience with collaborative divorce? Do you find it helpful? Does it resolve issues that other forms of dispute resolution either ignore or barely touch? Does it apply to certain types of clients/disputes?" I answered the questions truthfully, but as tactfully as possible because I still held great hope that theory and reality would ultimately coincide and that collaborative divorce would shine.

My additions to the chapter that answered their questions provided in pertinent part as follows:

Collaborative teams are no different than any other team in that they are only as strong as their weakest member. Collaboration only works when the professionals involved are like-minded individuals who actually trust one another. The professionals involved in a team must respect each others' boundaries. If conflict develops between fellow professional team members, it needs to be addressed and resolved immediately because such conflict will otherwise derail the entire process. 'It is the ability of the team to process these moments of tension and reach a shared understanding that sets a well-functioning team apart from those that struggle and flounder.' Also, the professionals involved in such work must be actual peacemakers. Many people claim to be peacemakers merely because they use the right 'terminology' and speak (orally and/or in writing) in a 'peaceful' manner. Terminology and tone alone do not make something or someone collaborative or a 'peacemaker.' Training provides tools, but it does not change a person's character. Self-awareness is essential, regardless of a particular person's skill set.

If both clients are suitable for the collaborative divorce process and each of the professional team members is well skilled and works well with their fellow team members, collaborative divorce can produce amazing results... [I]t is well-suited to any type of family law dispute because most of what occurs is emotionally driven and this process effectively addresses that issue.

I would be lying if I claimed that all of my collaborative divorce cases have been successful. However, the successes have far outweighed the failures. On the rare occasion in which I have had a case fall out of the collaborative process, my former clients subsequently told me that they were glad that they attempted to initially resolve their case in such a manner, with only one exception....

The one exception I mentioned involved both clients who were unsuitable for the process, as well as a dysfunctional professional team. For whatever reason, the communication needed for effective collaboration was lacking. Rather than working together, the attorneys became adversaries. Instead of allowing a professional to trust their instincts, the professionals insisted on 'negotiation by committee.' Furthermore, the professional team members failed to respect each others' boundaries. Moreover, when conflicts developed between professional team members, they were ignored by the other professionals.

I once again included the quote from Daniel Burrus' article titled "Are You Cooperating Or Collaborating? The Answer Will Increasingly Influence Your Success." It should be noted that I did not limit this quote to that one exception, but to collaborative divorce in general. The reason I did so was because I did not believe that the collaborative divorce community understood the concept of collaboration.

On January 14, 2014, I received an email from Stephen Willis, Ph.D., wherein he stated, "I notice that your latest discussion in the Power through Collaboration group is getting a lot of interest and participation, which is just great. I have enjoyed your responses to the other comments. In general, I appreciate the quality of your discussions and Huffington Post blogs. Which leads me to ask if you would be willing to review of one of my books?"

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. I am an active member of Dr. Willis' LinkedIn group and have had the pleasure of getting to know him as a result. In any event, I posted my review of Power through Collaboration: The Formula for Success in Challenging Situations on on January 24, 2014 and titled it "A Game Changer!" My review both praised his book and criticized the collaborative divorce community at the same time. My review was as follows:

Dr. Willis is absolutely correct that people cannot possibly collaborate if they don't even know what collaboration means. Before explaining what collaboration is, Dr. Willis describes 12 things that people frequently confuse as collaboration. Among other things, 'Collaboration does not mean the absence of differences, disagreements, or conflict; [It] does not require being leaderless and egalitarian; and [it] is not forced cooperation.' Furthermore, collaboration 'is not about obedience to the preferences or dictates of a group or larger community. Indeed such behavior is more typical of enslavement or of cooperative behavior coerced by force or economic necessity.' Moreover, he says, 'Mere cooperative behavior is often given the halo of collaboration.' I must tell you that just learning what collaboration is not was extremely eye opening.

He then says the following: 'Not every enterprise can be, nor need be collaborative. Collaboration is not something to do all the time. It is just one of many organizational characteristics determined by mission, type of people involved and their motivations, and the particular circumstances.... Collaboration is a subset of goal directed cooperative behavior in which people mutually care about achieving each other's goals and work willingly and freely to achieve each other's goals....'

This book is extremely thought provoking. In fact, Dr. Willis asks the following questions: 'Would you rather work together with people who share a goal with you, but do not care if you achieve your goal? Or would you rather work with people who care about you achieving your goal even if they do not share your goal. Which results in greater collaboration?'

According to Dr. Willis, 'People who only focus on the structure or mechanics of the collaboration process can more readily get stuck, taken advantage of, and end up with collaboration failure, possibly on a historic grand scale.' He describes the following 5 different personality types: (1) Collaborator; (2) Cooperator; (3) Competitor; (4) Enslaver; and (5) Predator. He also explains why collaboration obviously works best when dealing with Collaborators and Cooperators. Collaboration becomes increasingly difficult and potentially dangerous depending upon where on this scale the personality types involve range. Guess what? The personality type for attorneys tends to fall in the Competitor category or even further down on that scale. Among other things, 'Collaborator types find satisfaction in the successes of others.'

He then describes the following 9 motivations for cooperation: (1) Survival; (2) External Accountability; (3) Internal Accountability; (4) Joint Defense; (5) Achieve Own Goals; (6) Common Goals; (7) Family and Social Bonds; (8) Shared Mission; and (9) Shared Values. Dr. Willis then explains that 'the PtC [Power through Collaboration] Motivations for Cooperation are ordered according to how strongly they promote collaboration. Survival motivation promotes collaboration the least and Shared Values motivation promotes collaboration the most.'

However, Type and Motivation are not the only factors needed to be taken into account for successful collaboration. 'The 6 Collaboration Essentials are: (1) Communication; (2) Understanding; (3) Competence; (4) Respect; (5) Trust; and (6) Safety.'

Based upon my personal experiences with many members of the 'Collaborative Divorce' community, I posted the following status update over the social media while reading this book: 'I'm reading a book titled 'Power through Collaboration' by Stephen Willis, Ph.D. It explains a great deal. Interesting that someone who specializes in collaboration wanted me to review his book. You can call a process 'Collaborative Divorce,' but without 'collaboration,' what the hell is it?'

I cannot thank Stephen Willis, Ph.D enough for writing this book.

I then posted a link to my review as the following Discussion in various LinkedIn groups: "My review of 'Power through Collaboration' was just posted online. I am not so sure that the Collaborative Law community will like what I had to say, but it was an amazing book."

Dr. Willis commented as follows:

Thank you very much Mark for appreciating my book and work, and for your insightful review.

Mark, your assessment in your review that attorneys are of the 'Competitor or worse' type is probably the prevailing viewpoint as well. With respect to 'Collaborative Divorce' attorneys, that seems especially troubling. Corporate clients seeking out attorneys who are Competitor, Enslaver, or Predator types does not seem incongruous. Presumably the clients are knowledgeable and capable of adequately managing the competitive or predatory blowback, or even are 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' type operating via Achieve Own Goals motivation is incongruous.

I responded as follows:

Stephen, if you only knew. These folks (including family law attorneys, mental health professionals, CPA's and Certified Divorced Financial Analysts) often set up closed groups. In addition, they complain to the Boards of CP Cal (Collaborative Practice California) and IACP (International Academy of Collaborative Professionals) that I write too frequently, post too frequently, and comment too frequently in discussions on LinkedIn. They further state that they don't read any of my articles or comments because I irritate them and they would never refer a case to me.

Interestingly, almost all of my articles quote the work of others and give them visibility. In fact, they often make money because of that visibility. These 'collaborative' professionals don't tend to highlight others in their writings, if they bother to write. Furthermore, they don't share the writings of others.

That should give you some idea of the personality types involved in that process.

Dr. Willis responded as follows:

Mark, these types of situations are so frustrating, and yet so common. There are so many missed opportunities, especially for them as well. With the mindset of Competitor types, they are predisposed to subtract. In contrast, with the mindset of Cooperators and Collaborators, they are predisposed to add and multiply. For Collaborator types, 4 + 4 produces 16.

Retna Wheater, Strategic Consultant and Writer added the following:

Like Mark, I found closed group operations and closed mindsets common within particular sectors and amongst professional backgrounds of the type that Mark mentioned. It is almost a norm in many of the sectors that I have come across. Many of these groups that are found within communities, on closer inspection and comparison resemble many other ' different member ' groups. They all have something in common. Some are exceedingly territorial and gate keep continuously.The personalities that make up these communities and their respective attitudes are often grass root. They seem good at wielding power, to match their egos, but had limited perspectives, were often ignorant, inward looking, infantile and dated. It may well be that they are adept at playing politics. Perhaps when someone who proclaims to be educated displays these traits, than is it their value systems, beliefs, or insularity? I hesitate to say but some do resemble Masonic groups. Whatever the reason, they can pose real challenges, are a drawback to qualitative growth, progressive attitudes, new ideas, ethical or moral solutions for a civil society. Unless of course if 'one believes 1 is an island', and mutual interdependence is of no consequence.

Dr. Willis ended the discussion as follows:

Yes, there are all too many examples of professional groups whose PtC Types and Motivations are incongruous with and ill-suited to their stated missions. And their awareness of the incongruity is usually minimal.

Such groups need to become aware of the incongruity and its detrimental consequences, and work on upgrading the types and motivations of the group in order to be more effective at achieving their stated missions."

Interestingly enough, on February 3, 2014, I received the following email about my interest in joining one such closed group: "Let's have a chat about joining our practice group." After I expressed interest, I received the following email: "I am excited and delighted. I will bring it up to the group." I submitted an application to then be judged based upon comments I have made on the social media expressing some of my concerns regarding the collaborative divorce community. I explained the reasoning behind my comment and thereafter received the following email: "I am writing to thank you for submitting an application for membership in our group. At this time we are not adding any new attorney members, but we do appreciate your interest in our group.

By the way, Diana Mercer, another collaboratively trained attorney and Huffington Post blogger said the following about closed collaborative practice groups: "Yes, unfortunately, most of the Collaborative Divorce 'collaborators' in L.A. operate in closed groups (cartels?) and only refer cases to one another within the group."

I would now like to describe my reaction because it only proves my point. I spend an incredible amount of time conducting research, writing articles and sharing valuable articles that others have written. In fact, I spend approximately two hours every single morning before going to work (seven days a week) reading and sharing articles that others have written. That doesn't include the time I spend conducting my research and writing my own articles. Many people benefit from all of my effort and they give little, if anything, in return. Why should I make it easy for people who essentially shit on me to gain easy access to my work? I feel very used and mistreated, to be quite frank.

In the final analysis, it really doesn't matter how this all played out. What matters is how it made me feel. And now, to add insult to injury, I am being judged both for anything and everything I post, and for the way in which I react to being treated in a thoughtless, insensitive and offensive manner. My God -- how do they expect a person to react under such circumstances? Mind you, any one of the members of that group may agree with the things I express. However, since they are not transparent, they don't get judged. How can you question someone about views they hold, when they never share those views? Nevertheless, when you make your views known, they get to judge you. I don't like to subject my clients to a courtroom because, among other things, I don't think they deserve to be judged. When I represent them as their attorney (in whatever capacity) or work with them as the mediator, I don't judge them. However, I get to be judged by a jury of my peers. Talk about insulting.

My writings, views and opinions are all over the internet. I should never have been asked to submit an application for membership, if there was the possibility that I would be rejected. There is a big difference between my applying without invitation and being rejected and my applying at their request and then being rejected, especially when they don't even have the balls to state their reasons -- just "we are not adding any new members at this time." This is NOT peacemaking. This is not conflict resolution or management. This is conflict creation. When so-called peacemakers essentially create conflict and then judge others for the way in which they react, it is offensive. Life is like physics -- for every action there is a reaction -- cause and effect. Did anybody in that group bother to consider how I might react to the way in which this whole thing went down? A psychologically-minded person would consider such things and determine the most appropriate course of action to take, based upon that analysis.