When I first suggest collaborative divorce to a prospective client, often their initial reaction is fear that suggesting a non-adversarial approach will make them look weak to their spouse. Although they would prefer to work things out reasonably, they are afraid that their spouse will see their reluctance to fight as an opportunity to take unfair advantage of them.
This fear is understandable in our culture of “winners” and “losers.” Americans have been schooled in the Teddy Roosevelt philosophy of negotiation: “Speak softly, but carry a big stick.” Entering a divorce negotiation without a “big stick” – an aggressive lawyer – sounds like financial and emotional suicide.
Yet, while some people may need an aggressive approach, they are the exception. Less than five per cent of all divorce cases go to trial; the rest settle out of court. So, in 95 per cent of divorce cases, a lawyer with excellent negotiating skills is what’s needed. Hiring a divorce attorney known for aggressive tactics is like “hiring a contractor to build your house based on his or her reputation as a demolitions expert.”*
Most people who have been through an adversarial divorce will tell you that they felt that the process was largely out of their control.
Traditional attorneys have been trained to take control of your case and make opposing arguments that usually exacerbate the conflict. They prepare your case for trial. The client is relatively passive in this situation, while there is a looming threat to turn the decisions over to a judge if the parties don’t settle. (And what are the chances of settling if the attorneys are escalating the conflict?)
In a collaborative divorce you – the client – have much more power than in a traditional adversarial divorce. Clients play an active role in the negotiations, giving them much more of a voice in the outcome than in an adversarial divorce. Each of the divorcing parties has ultimate veto power. Not so when the decisions are in the hands of a stranger in a black robe!
Collaborative attorneys are skilled in helping clients identify their needs and concerns, and then helping them to focus on getting those needs met. The settlement agreement can be customized for the needs of the specific divorcing family in way that is not possible in an adversarial settlement. In this way, collaborative negotiation actually empowers the client.
Divorce is never easy or without pain. Collaborative divorce doesn’t mean conflict-free divorce. It does mean dealing with conflict in a healthy way – confronting and resolving differences without engaging in character assassination or threats. That takes real strength.
Attorneys trained in mediation and collaboration bring that kind of strength to the negotiating table. Their strength is not Teddy Roosevelt’s “big stick.” Their strength is in supporting their clients’ discernment of their genuine needs and interests and the respectful expression of those needs and interests. Then, the attorneys work as a team with their clients to tailor a settlement that addresses the needs and interests of both spouses and their children to the maximum extent possible.
*from “The Collaborative Way to Divorce,” by Stuart G. Webb and Ronald D. Ousky, published by Plume, a division of Penguin Group, 2007
© 2015 Arnold D. Cribari
