On paper Collaborative Law (“CL”) certainly seems like an idea whose
time has
come – it is such an obvious improvement, in appropriate cases, over
the
ordinary way most disputes are handled, especially divorce cases.
And yet
in real-life CL cases, the road is often rocky.
For that reason, at almost every stage of the CL negotiations that led
to the
divorce of our clients Mary and Arthur, we were pinching ourselves,
wondering
how this case could be going so smoothly. And now that the case
is
concluded, we thought it might be worthwhile reviewing the elements
that
contributed to our clients’ success with the CL process. (We have
changed
our clients’ names, of course, for this article.)
First, Mary and Arthur both wanted the divorce. Mary came to that
conclusion about six months before Arthur (and it actually took her
that full 6
months from initial interview to retainer), but by the time the CL
process
began, both were on the same page. In our view, this can often be
a
critical component that affects the pace and level of cooperation in a
negotiation.
Second, our clients are both exceptionally well-organized and
financially-savvy
people – more so, perhaps, than their lawyers. They readily
assembled the
necessary financial information, and Mary organized it into a series of
spreadsheets. After negotiating a moderately complex parenting
schedule,
Arthur organized it into a computer-readable calendar that each of them
can
email or print out as needed.
Third, Mary and Arthur had similar values and goals. Both are
experienced
computer professionals with good incomes, and both are very devoted to
their
children. They respect each other as people and are both very
confident
in each other’s abilities as parents. Unlike many of our clients,
Mary
and Arthur were very successful at saving money, and therefore their
finances
were in good shape. In short, they had the material and emotional
resources needed to make the transition from marriage to divorce – to a
far
greater extent, in fact, than 90% of the clients with whom we work.
Finally, they communicated effectively, collaboratively, and in a
focused
way. Our four-way meetings went smoothly because our clients were
comfortable sticking with the agenda for each meeting. They kept
their
promises in the CL process, and completed their homework (such as data
gathering) on time or ahead of schedule. Arthur moved out of the
marital
home, as agreed, and then cooperated with Mary when she refinanced the
mortgage
on that home. at no time in any of our five four-way meetings
themselves, or
the preparation for them, did either mary or arthur raise issues of
accusation
or other incivilities; indeed, they were so completely focussed on
resolution,
in spite of inevitable differences of opinion regarding money or
children, that
the efficiency was overwhelming.
With all of this resourcefulness and cooperation and respect coming
from our
clients, one might wonder how we, as counsel, added value, if at
all. Our
view is that the CL process created a safe container in which Mary and
Arthur
could take the risk of trusting each other. They knew, from the
start, that
their two lawyers liked and respected each other but at the same time
would and
could maintain appropriate professional boundaries. They knew
that each
of them would have opportunities for separate consultation with
counsel, but in
reality they did almost all of the work in four-way meetings.
The level of trust reached such a point that our clients began sending
emails
to all four-participants in the process, and we (as counsel) consented
to
direct four-way communications via email. At one point, after the
divorce
was over, Mary consulted David about a referral to a therapist he had
mentioned, and she wrote a letter of praise to and for Paula, her own
attorney,
and the collaborative process.
The trust and feeling of safety that was created by the process came,
in part,
from adhering to practices that have become customary in CL: taking
turns
meeting at each other’s offices (though many of the meetings were on
David’s
turf because it was more convenient for the clients) and alternating in
the
preparation of a memo summarizing the discussions at each
meeting. We
gave our clients’ a separation agreement checklist, which helped us
structure
the negotiations. One of us drafted the Separation Agreement; the
other
edited. Paula prepared the papers to be filed in court. The
division of labor felt balanced, and the clients felt they knew what to
expect.
Mary and Arthur might have had a very amicable divorce even without CL
– we
will never know. However, it is clear, we believe, to all four
participants, that CL gave these clients a supportive framework to keep
their
process on track. Their two young children will benefit from the
wise
decision these two parents made to collaborate.
