Updated: Oct 3, 2022
At Family Law Results, we talk a lot about why your choice of lawyer and process for sorting out the financial and parenting matters in your separation is so important. Collaborative divorce features in a lot in those discussions! Just how is using the Collaborative process in your separation or divorce different to the other resolution processes on offer?
1. The lawyers are different:
Often when a new client reaches out to me for the first time it is with great trepidation. They're worried that getting lawyers involved is going to blow things up and inflame conflict between them and their ex. You only need to watch “Marriage Story” or hear some of your friends' horror stories to see why this fear exists.
But, unlike Larry Litigator, your Collaborative lawyer has undergone specialist training to move away from viewing conflict as being like a battle to be fought as adversaries and to be won-at-all-costs. That doesn’t mean they’re any less of an advocate for you! It means they are a skillful advocate for what’s important to you and your family in a way that doesn’t pit you against one another and inflame the conflict between you.
2. There are no lawyers’ letters:
Let me repeat that – there are no lawyers’ letters!
Instead, in a Collaborative divorce the work of understanding you and your family, the problems you need to resolve and finding solutions is undertaken in a series of meetings between you, your ex and your lawyers. We may also bring in other professionals to help us.
What is the advantage of this? Simply put, lawyers' letters can cause feelings of distrust, misunderstanding, both feelings that lead to conflict rising. Getting a lawyer’s letter can feel threatening and frightening, even if the letter is written as respectfully as possible. Sometimes just seeing a lawyer’s letterhead is enough to dial up the stress levels for most people! When communication is in letters or emails, it is easy to misunderstand the intent or meaning of what is said which, in turn, can give rise to unnecessary stress and arguments. Meeting together and not writing letters helps us minimise the risks of this.
In meetings, your Collaborative lawyers can model respectful communication and be sure everyone has the opportunity to be heard and ask questions as they arise. We can work to ensure we are all on the same page and that misunderstandings are cleared up as they arise so they don’t fester and become problematic.
3. The focus is different:
The focus of lawyers' work is usually on what your legal “position” is – what your rights and entitlements are compared to the other person’s. In other resolution processes, the focus becomes on competing over these legal rights and entitlements to "win".
However, legal rights and entitlements often don’t reflect what is actually important to you, your children and your ex as you move through your separation or divorce. What is actually important to you and your family gets lost in the competition over what section xyz says and what the law on blah blah blah is! The only people who really relish such analysis is lawyers (otherwise we’d all be doing it!).
In Collaborative process, don’t worry, you get legal advice so you can understand how the law is relevant to your situation in order to make fully informed decisions. However, in our discussions together, we focus in strongly on what is important to each of you and, most importantly, your children. The financial and parenting problems you are facing are framed as questions that centre around your interests so that we find solutions that best meet them.
4. It’s way more creative!
Because the Collaborative Process focuses on finding solutions that serve what is important to you and your family, the outcomes are often very creative. We can explore all manner of options and are only limited by our imaginations and how much future involvement together you and your ex realistically want to have. This often means we can find financial solutions that help you each optimise your financial future.
In other resolution processes, the solutions offered are often far more limited because they must fit within the confines of the ‘remedies’ the law prescribes and that a Court can order. Often lawyers latch on to an option quickly and don’t explore all the other possibilities in the way Collaborative lawyers do. This can mean some gems are missed.
In financial matters this is very evident. So often a separating couple will come to the Collaborative process thinking their options are limited to “sell the house or have one person buy the other out”. That’s not surprising given those are often the default options that are presented to separating couples. Imagine their surprise when we then come up with tens of other options that could help them move forward in a way that makes sense to them and optimises their financial outcomes. We then all work through those together to settle on the one that ticks the most boxes for them in terms of addressing what’s worrying them and what they hope to achieve.
5. There is no Court hanging overhead:
We get it. Most people don’t want to go to Court. Even if you choose to mediate or negotiate in some other way, the threat of court looms large over you. It overshadows the negotiations with overt threats made of proceedings. The negotiations are conducted knowing court will happen if agreement isn’t reached. It’s unnerving and unhelpful to the conflict temperature and effective decision making. Sometimes Court is squarely in the picture as proceedings have already been issued. An awful lot of negotiation happens outside courtroom doors and mediations sometimes happen as a ‘last ditch effort’ before a hearing date. Talk about pressure!!
Collaborative process is the only resolution process where you and your lawyers specifically agree in writing that you won’t go to court while the process is happening. Threats of court aren’t to be made. A parallel litigation strategy isn't being run. When court is raised in discussion, it is usually just in the context of the lawyers providing legal information by pointing to examples of how the law has been applied in similar cases to yours.
6. You are involved every step of the way:
In other resolution processes, you may feel the lawyers take over in the well intentioned belief that good service means driving things for you. You may feel it is difficult to be heard amid the noise of lawyers, family and your ex telling you what you should do, the procedural 'rules' telling you when you can and can't speak, and all the legal demands being made. Timeframes, which may feel stressful or even impossible, are dictated to you through the Court imposing timetables or the other lawyer demanding responses by a certain date and making threats about what will happen if you don't meet this demand.
In the Collaborative Process, you are involved every step of the way. You attend the meetings and do the work of reaching resolution, alongside the professionals. The lawyers will support you and your ex to speak for yourselves, ask questions and to carefully listen to everyone else. Importantly, your needs are considered when it comes to deciding on realistic timeframes. Sometimes, this may mean taking a pause between meetings to enable you each to collect information or attend counselling or coaching so that you may participate most effectively in the meetings. Such pauses aren't regarded as "stalls". They are viewed as progress because they help you participate effectively and use meeting time efficiently to reach solutions.
In other processes, an arbitrator or Judge may decide what is to happen. Even when negotiating, the choice you have may not feel entirely yours due to feeling pressured by your ex, their lawyer or the threat of court proceedings. In the Collaborative Process, your hands are firmly on the steering wheel. Supported by the professionals, you are involved in generating and assessing options and the decision about what is settled upon rests with you and your ex.
You can see why so many of our clients are choosing to divorce differently by using Collaborative process! If you think you may also want to then book a free, no obligation chat with us.
Names and any identifying information have been altered to protect the privacy of individuals. The information in this blog is current at 1 September 2022. The information in this blog is general, educative information only. As such, it should not be relied on in place of getting your own legal advice.