When my ex-husband and I got divorced, collaborative family law
practice was not yet heard of, but in a way we had a collaborative
divorce. Though the feelings typical of divorce were there, we relied
on others to help us through the process and focus on the important
decisions. In just about every step of our divorce, we
On how best take care of our child, we spoke to a couple of child
therapists. These professionals gave us concrete advice we could
implement as we headed into two different households. For the
financial issues we approached our accountant, who was familiar with
our finances and was able to offer solid relevant information on the
things that might have tax-related or other implications. For the basic
framework of our divorce decree, we went to a wonderful mediator, who
gave us the forms, explained the legalese and listened carefully to
our concerns. We always went to these appointments together. Any
communication outside of these meetings were shared with each other.
When all these pieces were in place, I gave the paperwork to my
attorney, who did the mechanical work. Once before the judge, we
verified everything and the marriage turned into divorce.
I have whittled down the 'best possible outcome' ending in a few
sentences. In real life, this took a lot of time and effort.
There were many times in which I am sure both my daughter's father and
I succumbed to anger or frustration. While at other times, seeing my
daughter holding her father's hand as she went up the stairs to their
new home gave me a familiar sense of calm amidst the sadness we all
Divorces involve so much healing, anger and re-training of life
as we knew it, to have others help one stay focused on the important
issues is invaluable.
I understand not all situations are the same and that this
collaborative approach does not always work for everyone. However, if
there are children involved, having a third party
who can listen to both sides is an incredible aid. There are issues
which you can't predict until they are in front of
you. If you have a therapist who is also a mediator or a parent
coordinator, they can identify the overall mechanical aspect of
bringing up your children in two different households, like
scheduling, camps, birthdays and such. More importantly, the
philosophical ideas which are also part of child rearing can also be
identified and put into place with a strong parenting plan.
Here is a comprehensive article from Laurie Israel, Esq., who
talks about two different ways of making a divorce retain healthy
levels of respect and trust, which in turn protects the new
relationship you and your ex-spouse will be creating to co-parent your
- Daphne Strassmann
A Collaborative Divorce
by Laurie Israel, Esq.
A few months ago I wrote a column for Our Town Brookline
entitled, “How to Save Your Marriage.” (In case you
missed it, you will find it on my website,
In this month’s column, I discuss what happens when the marriage
has failed, and you are seeking a divorce.
Everyone has their horror stories about the divorce process. You
hear that it takes years. You hear about people spending huge and
unexpected amounts of money for lawyers. You hear about many instances
where the divorce has harmed relationships with children, family,
and friends. Many find that child support payments cause them to
live as frugally as students until their children’s emancipation.
Post-divorce problems can linger for years, even for a lifetime.
It’s so puzzling how a relationship that began with love
and affection can become so full of hatred and spite. What happened
to the good feelings, respect, and appreciation that were the basis
of the marriage? What happened to the many shared experiences, some
involving the couple’s beloved children?
This article is about an alternative vision of divorce that seeks
to preserve relationships, respect, and trust. In addition, this
alternative vision encompasses legal processes that are used in
a helpful, rather than harmful, manner. These are methods of divorce
that are productive, tend to better meet the divorcing parties’
needs and interests, and are extremely cost-effective.
Mediation – A Technique with Promise
In a mediated divorce, the two divorcing parties meet with one
mediator (usually, but not necessarily a lawyer) for a number of
times to address and try to resolve the issues in their divorce.
The mediator does not represent either of the parties, and must
be (and must be viewed by the parties as) an impartial, objective,
The terms of the agreement of the mediating couple are sometimes
reflected in a full-scale divorce agreement setting forth explicitly
and in detail the terms of the divorce (“Separation Agreement”).
Sometimes the mediation results in a term sheet, to be rendered
into a Separation Agreement later.
Mediation is appropriate only in cases when the two parties are
on a “level playing field” in terms of their bargaining
power and their assertiveness. If one party is more articulate,
powerful, and controlling, and the other tends to be passive, malleable,
and fearful, this would not be a good profile for a mediated divorce.
Often, mediated divorces with parties who fit this pattern result
in duress, and the resulting contract may be unenforceable, causing
I believe that it is crucial for parties entering into a mediated
divorce to each see a separate divorce lawyer for one or two sessions
prior to the first mediation session. Unfortunately, this is seldom
done, but it brings great value to the process, ultimately saving
the parties the emotional and monetary costs of redoing agreements.
In these initial sessions with their separate attorneys, each party
will find out what their rights and obligations are in the marriage.
This is an intensive process, depending on many factors –
including length of marriage, children, and incomes. All these factors
are listed in Massachusetts General Laws chapter 208, section 34.
There are over 20 of them! They are fascinating reading.
The rights and obligations introduced by the attorneys become a
baseline for negotiations in the ensuing mediation sessions. Many
divorcing people, out of guilt or distress, give away very important
rights that will affect them detrimentally for the rest of their
lives. While some mediators work in the “shadow of the law”
and tell the divorcing couples what the usual agreement would be
in a divorce with similar factors, some mediators believe the parties
should contract freely without the benefit of knowing what the law
Checks on the Mediation Process
I believe each party should know what the contours of a divorce
settlement would be under the law. That way, if a party waives his
or her rights on a certain topic, say college educational costs
or splitting of a retirement account, it will be done knowingly,
a requirement for someone to enter into a valid contract. What we
do not want to see are evidences of duress – a party waiving
his or her rights because of fear and pressure by the other party,
or parties unknowingly waiving important rights.
Most divorce mediators encourage each client to have a separate
attorney review the terms that result from the mediation. This is
a very important check on the mediation process. The feedback from
the two attorneys will be invaluable in making adjustments in the
terms of the agreement, advising the clients on his or her rights
and making sure waivers, if any, are made knowingly.
The lawyer is the client’s advocate in a way that the mediator
cannot be. That is why it is so important to have a lawyer-advocate
engaged in a mediated divorce process. Further, the probate judge
must make findings of fact that the Separation Agreement between
the parties is fair and reasonable. A judge may find an agreement
that has not been vetted by lawyer-advocates for each party to lack
this requirement. (Note that under current ethical rules, a mediator
is not permitted to go to court to present the mediated agreement.)
it is very useful to have both attorneys attend the divorce hearing
to make sure the agreement passes muster, and to make changes on
the spot, if needed.
Mediation, with the assistance of attorneys before, during, and
after the process, is a good paradigm for a fair, cost-effective
divorce. Another method, which is gaining popularity in Massachusetts
and throughout the country, is Collaborative Divorce.
Collaborative Divorce – The Prius of Divorces
A mediated divorce (using advocate lawyers at relevant points)
is the Camry of divorces. It’s solid, safe for the most part,
and it can do almost everything you want. But the collaborative
divorce is like a Prius, it has the most advanced resources at its
disposal. It’s groundbreaking, and it can turn a sometimes
dirty process into something that is a lot better for the environment.
The word “collaborative” is coming up more and more
in business applications. I recently saw the word in an ad campaign
for new Microsoft software that puts people working in far-flung
locations in contact with each other. You probably have noticed
the word “collaborative” frequently appearing in the
print media too.
Collaborative Divorce has been around for over 15 years, and for
the past six in Massachusetts. People are starting to hear about
it and request it. People are starting to tell their divorcing friends
and relatives about it. Word is definitely getting around about
the usefulness and power of Collaborative Divorce.
The premise of Collaborative Divorce is to resolve the divorce
though a series of meetings between the clients and their respective
attorneys. These are called “four-way” meetings, and
are actually what the Courts require litigants to do prior to the
trial in a litigated divorce. In Collaborative Divorce, there are
a series of four-way meetings, in which the parties discuss the
terms of the divorce with the assistance of their attorneys, and
try to come to a reasonable conclusion.
There are several differences between Collaborative Divorce and
other types of four-way negotiations.
First of all, Collaborative Lawyers are trained in problem-solving
techniques and in dealing with both parties – especially with
the party represented by the other lawyer. This training is unique
and powerful. Collaborative Lawyers tend to update these powerful
techniques by attending ongoing training sessions. The result is
that effective agreements on issues can be crafted in a manner that
preserves the parties’ relationships to the utmost.
The Challenging Puzzle To Find Solutions
In a Collaborative Divorce, the meetings stay far away from accusations
and blaming, and tend to be on the positive side. They are actually
fun (perhaps more for the attorneys, than for the clients, admittedly).
Everyone is nervous about the first meeting – even the attorneys,
because no one knows what the solution to the “puzzle”
(i.e. the terms of the divorce) will be. But Collaborative Law techniques
can almost always find solutions, which often are more creative
and fulfilling than the ones that come from a conventionally negotiated
divorce, and certainly a better process with better outcome (in
terms of not causing harm to relationships) than a litigated divorce.
One of the ways the parties are encouraged to stick with the Collaborative
Law divorce process is that at the first meeting, the parties and
their attorneys sign an agreement. The agreement says that if the
parties decide to litigate, they must hire new attorneys and they
cannot use any of the materials (e.g., appraisals, documents) gathered
in the collaborative process at trial. That means that the process
is a kind of “marriage” in working through the terms
of the divorce. Holding people to the process in this way is a surprisingly
The Act of Listening
Attorneys learn as part of their collaborative law training to
listen to each party respectfully and actively to try to hear what
the other party has to say and how he or she feels. As attorneys,
we first find out what our own clients’ interests are, but
it is also very important to find out, try to understand, and respect
the interests of the other party.
The Collaborative Attorney learns to delve into what a party means,
rather than what he or she is actually saying. By doing this, something
that at first appears like a conflict may not be a conflict at all.
The aim of Collaborative Law is to create solutions in which, insofar
as possible, both parties can “win.”
The benefits of Collaborative Law are great. Better, more workable,
and longer-lasting solutions are generated. Relationships with family
are preserved. It is generally not more expensive than mediated
divorces (with the advocate attorneys’ critical involvement.)
It is generally much less expensive than litigated divorces. Massachusetts
Collaborative Law Counsel (“MCLC”) is the professional
organization in Massachusetts for practicing collaborative lawyers.
If you want to find out more about Collaborative Law and the attorneys
practicing in this field, go to the MCLC website at
Not every divorce can be handled by mediation or collaborative
law, but it makes sense to see if the divorce you’re concerned
about (yours, a relative’s, or a friend’s) can be resolved
by these techniques. A good divorce is a precious thing indeed.