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, www.laurieisrael.com/articles.html) 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, fair third-party.

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 problems later.

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 would say.

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, which is 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 responsibilities, 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.) And,
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 effective technique.

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 www.massclc.org.

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.