Some 30-odd years ago I chose the profession of law because of a deep-seated respect for our legal system, and a desire to help people. As an idealist, I believed that “the law” – in a democratic republic such as ours – is the sine qua non of a civilized society. Law enables us to substitute words, wisdom and reason for weapons, fisticuffs, or abusive language. The courts administer the law, providing a safe container for conflict.
That’s what I thought. Then I became a divorce lawyer.
The courts are adversarial: their goal is to bring justice to light by pitting opposing parties and competing arguments against each other. Justice is served, the theory goes, because the party with the most compelling argument “wins.”
Unfortunately, when dissolving a marriage, this adversarial system – rather than containing the conflict – often prolongs and intensifies it. Divorce court hardly provides “a safe container” for conflict. There, cross-examination and personal attacks can deepen the conflict and generate monumental attorneys’ fees.
“One’s day in court” usually comes at an enormous price, depleting the couple’s financial resources and leaving emotional damage in its wake. Even in adversarial divorces settled “out of court,” the negotiations involve intimidation and power, again at excessive cost.
I became a divorce lawyer to help people through a traumatic time in their lives – like an “emergency room lawyer.” The problem was – I found myself part of a system that was exacerbating the trauma!
In law school I was taught to be a “zealous advocate” for my client. But what does that mean in a divorce? People who are hurt and angry often want to lash out at their spouse, and show the world how they were wronged. They want their lawyer to “win” for them. That may feel satisfying in the short term, but it is often not in their long-term best interests. This win-lose, zero sum game can be ruinous for the children as well as their parents.
To be sure – in cases involving domestic violence – immediate court intervention is necessary, and my work there was, indeed, like that of an emergency room lawyer. In most cases, though, there are no clear-cut villains and victims. Just hurt, angry people trapped in a system that encouraged hostility and distrust.
More and more, I was feeling that – by participating in the adversarial system – I was part of the problem.
But what was the alternative? I took mediation training, but there seemed to be a dearth of cases that were good candidates for mediation. In divorce mediation the spouses almost always represent themselves. Who can do a great job of representing him/herself while going through the emotional turmoil that usually accompanies a divorce? And mediation assumes that both parties have comparable negotiating skills, a relatively equal balance of power, and shared values. How many divorcing couples have those characteristics? I found that mediation was not a good solution for most divorcing couples.
Then I discovered Collaborative Divorce.
Collaborative divorce is a settlement process invented in 1990 by Minneapolis divorce attorney Stuart Webb, who was as disenchanted with the existing legal system as I was. A handful of attorneys brought the concept to New York, about ten years ago. Unlike mediation, both divorcing parties have the support and advice of their own separate attorneys throughout the collaborative process. Unlike litigation, collaborative practice removes divorce from the court-based adversarial system.
At the outset, the spouses agree not go to Court, or threaten to do so, during the settlement process. Furthermore, the lawyers agree not to be the litigators or trial counsel if negotiations break down. Negotiations occur at settlement conferences with both spouses and their attorneys present. The attorneys use mediation techniques to facilitate respectful, interest-based negotiations.
The end result is an agreement tailored to the interests of the divorcing couple and their children. These negotiations are so different from the power plays that adversarial divorce attorneys employ, collaborative lawyers must commit to extensive training.
This work is challenging. There’s no shying away from conflict in the collaborative process. It requires creativity and stretches the limits of the lawyer’s patience, compassion, and courage.
Divorce is never a picnic, but collaborative divorce offers the best hope for the vast majority of divorcing couples. From my perspective, after years of divorce litigation and collaboration, it is the collaborative ex-spouses who “win” in the long term.
I finally have a way to achieve the idealistic goal I had as a young man: to help people through a traumatic time in their lives, and alleviate their trauma. Thanks to Collaborative Divorce – I have found a safe container for conflict.
For more information on Collaborative Divorce visit www.westchesterdivorcelawyer.com.
© 2012 Arnold D. Cribari
