Collaborative Divorce Lawyers Are Tough and Experienced

by Dana Boyle on January 24, 2012

A lawyer began representing the opposite side of a couple who wanted a collaborative divorce, and that lawyer was convinced the process was wrong for them just in case they’d ever have to litigate, so she began the litigation process with the client despite the client’s wishes.  She told the clients she knew better and it was her job to decide the right process for them.  That person fired that particular attorney and came to me, pro se (without a lawyer) with their spouse to ask for another referral who will follow the collaborative model and allow them to commit to the process they thought was right for them.

These people sat in my office and explained to me how important it was to them to be amicable throughout their divorce.  They made it clear that neither of them wants to attack the other, neither of them wants to rip the family apart, neither of them wants their private matters made public or decided by a judge.  Most importantly, they were concerned with how their child would experience their divorce, and they jointly wanted to shield their child from the toxicity that can develop during the process.

Point blank, the pro se spouse said,

“We started this amicably.  That’s what I intended and my spouse agrees.  But as soon as I sat down with this other lawyer and left that office, we began to fight.  Our relationship started to break down.  It already started to get ugly.  It’s like she stirred the pot on purpose.”

They already decided how they wanted to handle most of their affairs, and just needed some legal expertise to help them do it the right way, along with the paperwork they don’t know how to do.  The other lawyer didn’t agree with how they wanted to do it and told them a lot of “have tos,” when they really do have choices about most things, and as lawyers all we have to do is advise them of all the consequences and the law so that they are making intelligent and informed choices for themselves.  If we disagree as professionals with how they want to do it as a couple, we educate them, inform them, advise them and then document it in our paperwork.  They can do whatever they want with most issues.

As I shared the frustrations I had about the evident gap between collaborative lawyers and non-collaborative lawyers, and between one generation and another  and the refusal to give this new generation of divorce clients what they want and need with a very seasoned family law assistant in our office, she responded,

“Well, I think that people think that lawyers who litigate have far more experience dealing with hostile lawyers and issues on the other side.  I think people think they’ll go to the mat for their clients.  They can handle the complicated issues that come up.”

She knew better, but she was saying what she thought was the prevailing attitude amongst other lawyers, and maybe amongst the particular kind of client that hires that traditional kind of family lawyer.

Furthermore, she said,

“The lawyers who practice that way pride themselves on that.  They pride themselves on being tough, smart and able to win at all costs, no matter what the issues are.”

I’ve said it before, and I’ll say it again:  Collaborative divorce has been in existence for about 11 years.  Nobody has practiced it longer than that.  I was first trained in it about 9 years ago, in its infancy.  I was told by my then boss it’d never take off and nobody would practice it with me because you can’t make money at it, and that lawyers generally work out divorces anyway, so what’s the point?

The collaborative process removes the need to deal with pitbull lawyers, for the most part.  There are still different collaborative lawyer personalities and styles.  The process removes the need to fight it out, for the most part.  That’s not to say there are never heated moments or needs for a break.  It’s an open, transparent process where two lawyers and two spouses sit around a table and work out their divorce issues together, creatively and with the law and facts involved.

The clients are allowed to make decisions that go against “traditional” methods of splitting up retirements, placement of children, etc.  As lawyers, like I said, we just do our job of advising them of the law, of what we believe is in their best interest, of what they’d have a right to if they went to court and a judge decided, and then we do the best with what they want despite that advice.  Sometimes they follow it, sometimes they don’t.

We take minutes at the meetings, so we have documentation of advice given and decisions made, and their decisions are fine as long as we know we advised them fully and they understand our advice.

Truthfully, I believe that the clients have the benefit of two lawyers in collaborative divorce, rather than one, because they can often hear the advice of both lawyers around the table.  We still meet with our clients privately, but much of our discussion and advice happens in real time during negotiations and collaboration.

As collaborative lawyers, we really have to think on our feet and know our stuff because we remove the buffers of email messages and phone tag to prepare canned answers to challenges we receive from the other side.  We are sitting right across the table from them when they bring up an issue and their perception how it should be handled.  That’s just as tough as being surprised at trial, only we don’t have a judge breathing down our neck or an audience, but our clients are very interested in what we have to say.

Most of us have to be tough, because we also handle traditionally litigated divorces, but in collaborative divorce, more than tough, we are good listeners.  We are solid advocates.  We are truly committed to the best outcome for all parties involved as we advocate for our client.  We spend time on the real issues, the human experience in divorce, and helping families maintain healthy connections even though their family will look different when we are through.

I believe it’s tougher but more worthwhile to work out a co-parenting plan that will actually help keep their family intact and avoid injury to their children from the breakup, rather than fill out a parenting plan that is boilerplate or follow the advice of “experts.”  Who is more an expert on their child than a set of parents?

In my experience handling collaborative divorce matters, my clients have consistently told me that not only did they feel I advocated zealously for them in the process while collaborating with the other side, they have said I did so with the skill and sensitivity that made their spouses feel at ease, able to work with me and see their side, and most importantly, that I helped them get what they needed in their divorce without making their spouse feel attacked.

Most have even said their spouses trusted me and supported our “side” because of the way we collaborated openly with the joint agenda they had in mind.  It’s not uncommon to have either side of a collaborative divorce say they liked the other side’s lawyer better.  We are that friendly and open in the process.  We go after what we know our client needs and wants, but we do it without arming the other person, making them feel attacked, or derailing the process into litigation.

That, to me, is skill and experience.  It’s a different kind of intelligence.  It’s a different kind of “winning at all costs.” 

You have to judge for yourself.

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