Massachusetts Mandatory Parent Education Program For Divorcing Parents With Minor Children

By Massachusetts Divorce Lawyer and Divorce Mediator Colleen E. Cunnally, Esq.  Divorcing couples are usually most concerned about their children.  How will my children adjust to the change in our family structure?  How will I effectively co-parent with my soon to be ex?  When and how should we tell the kids?  What questions will they ask?  My ex is placing the children in the middle!  For these reasons and more, the Massachusetts Probate and Family Court requires parents of minor children (even in uncontested cases) to complete a mandatory parent education class.  The order requiring the completion of the class […]

Collaborative Family Law Group of San Diego > Top 9 Collaborative Divorce Tips for Success

From Shawn Weber, Esq.:

1. Use a full team model. It can seem daunting to think of adding multiple professionals to one’s divorce case. A full collaborative divorce team would be a coach for each party, two attorneys, a child specialist and a financial specialist. There is a temptation to think, “I don’t need all of these people.” Sometimes people fear that having a full team is cost prohibitive.

In reality, the different professionals bring efficiency through specialization. In other words, you aren’t paying an attorney at his higher rate to do mental health work that he is less qualified to do. Rather, you pay a mental health professional to provide coaching services with much greater skill. Use a qualified and well-trained accountant or financial planner for financial work. Specialization gives you a better product more efficiently obtained.

The shortcut of only using attorneys may seem cheaper or less complicated in the short-run. But in the long run costly mistakes can be made. The coaches and child specialists are excellent in helping parties and parents focus on the important things in the divorce process rather than on the “emotional noise” that is ever present in every family law case. Financial specialists are adept at watching for costly tax planning mistakes. They do a tremendous job of making complex financial issues more accessible. Going into a collaborative case with only part of a team is like mountain climbing with only half of your gear. You might be able to get to the top of the mountain, but it will take longer and be a more miserable journey. You might not make it at all. So, be sure to have all the tools available.

Once you have your team in place, make sure you use your team members. Use the coaches to help when things are emotional. Use the financial specialists to figure out the money. Use the child specialist to make sure that your kids are OK. Don’t set up the team and then not use it. It’s like filling up a tool box with a full socket set, but only using one wrench.
See “Collaborative Practice Saves Money” by attorney Sandra Joan Morris.

2. Make sure that you are working hard. Getting divorced is very hard work. I advise my clients that they will work harder than they ever have at anything in their lives. Divorce is complicated and extraordinarily emotional work. You will get a lot of homework to complete between collaborative meetings. This may involve producing financial records or learning how to work out parenting disagreements with the other parent. Just sitting in a room and trying to be constructive with a spouse you are divorcing can be exhausting both emotionally and physically.

I can predict failure in a collaborative process when I am working harder to settle the case than my client. There should be no illusions. A lot will be asked of you. Don’t expect your team of professionals (as capable as they are) to do all the work for you. Ask often what you can do to move the ball down the field.

3. Get your homework done on time (maybe even early). You will be given assignments between sessions like gathering financial data, preparing forms or working with your children. If the homework required for a scheduled meeting hasn’t been done, the meeting will be a waste. Your divorce will take longer. If you get your tasks completed on time, or even early, the meetings will go smoothly and your case will likely conclude on time.

4. Disclose Everything. That we are trying to be more informal and friendly does not relieve you of the responsibility to be completely truthful and open. The legal requirements for disclosure remain whether the case is collaborative or litigated. That means you disclose everything. That’s EVERYTHING.
Trust is the great lubricant of settlement. Collaborative practice relies on mutual trust and consensual resolution making openness essential. Completing the financial disclosures on time enables better trust. Without trust and openness, you probably won’t be able to settle and you will end up in court. Besides, the law is very clear that disclosure is required. Suffice it to say that the California Courts have broad power to punish a non-disclosing party. (For a primer on California’s strict disclosure rules, click here.)

5. Be patient. You will not solve every issue in your first meeting. The first several meetings often only set the stage for settlement later. There is a reason for this. Information needs to be gathered. Emotions need to be controlled. Children’s concerns need to be addressed. Divorces are complicated with many legal issues and difficult emotions. If you are patient, stick to it and rely on your team, your chances of success increase.

6. Relax and don’t panic. Legal disputes are frightening. Legal disputes about your family are paralyzing. Sometimes individuals succumb to “fight or flight,” that tremendous adrenaline response that saved our ancestors from being eaten by the saber tooth tiger. That’s great when you are trying not to be eaten. It’s not so great when aiming for a peaceful settlement.

When things get difficult, it’s easy to panic and run to court. Instead, engage your team when things get difficult. A skilled collaborative team can help you find a solution to a difficulty much faster and more creatively than court ever could.
See “The Emotional Roller Coaster of Divorce” by Pauline H. Tesler, M.A., J.D., & Peggy Thompson, Ph.D.

7. Talk Less. Listen More. To find a settlement, it will be important to hear and understand what your spouse is saying and feeling. You should get your story out. But don’t do it at the expense of missing your spouse’s point of view. Looking at the world from your spouse’s point of view will help you find a solution that works for both of you.

Importantly, don’t forget to listen to your professional team. They have been through a lot more divorces than you and will have suggestions that you may not think of on your own. Take time to hear and internalize what is being said.

8. Don’t think win or lose. Focus on solutions. The terms “justice” and “fairness” mean different things for different people. You don’t have to win everything. Divorce doesn’t need to be a competition. Rather, divorce presents problems for which there are solutions. The challenge is to find the solutions.

Instead of “fairness” or “winning,” try to make good business decisions. Settling your case is its own victory. Taking the decision away from a judge and keeping it with the parties is empowering. Ending conflict is liberating.

9. Have an open mind. It’s easy to get locked into preconceived notions. In all collaborative practice cases, time is spent brainstorming to find creative solutions. In brain storming, there are no bad ideas. It’s a great way to find many possible and more creative options.

One old parable involves two women fighting over an orange. Foolishly, the two women simply cut the orange in half to settle their dispute without considering what each wanted from the orange. This was a poor solution as it failed to address each woman’s real interests. One woman wanted to use the zest while the other wanted the pulp for juicing. Had they sought a solution that truly addressed their needs rather than taking the most obvious option, they would have found a better way.
Collaborative Practice takes openness, hard work and a good team. Collaborative Practice helps people move forward with dignity. The strategies listed above can help you to successfully settle in a respectful and dignified process. Here are some links with more information about collaborative practice:

Read more at Collaborative Family Law Group of San Diego.

Collaborative Family Law Group of San Diego > Top 9 Collaborative Divorce Tips for Success

From Shawn Weber, Esq.:

1. Use a full team model. It can seem daunting to think of adding multiple professionals to one’s divorce case. A full collaborative divorce team would be a coach for each party, two attorneys, a child specialist and a financial specialist. There is a temptation to think, “I don’t need all of these people.” Sometimes people fear that having a full team is cost prohibitive.

In reality, the different professionals bring efficiency through specialization. In other words, you aren’t paying an attorney at his higher rate to do mental health work that he is less qualified to do. Rather, you pay a mental health professional to provide coaching services with much greater skill. Use a qualified and well-trained accountant or financial planner for financial work. Specialization gives you a better product more efficiently obtained.

The shortcut of only using attorneys may seem cheaper or less complicated in the short-run. But in the long run costly mistakes can be made. The coaches and child specialists are excellent in helping parties and parents focus on the important things in the divorce process rather than on the “emotional noise” that is ever present in every family law case. Financial specialists are adept at watching for costly tax planning mistakes. They do a tremendous job of making complex financial issues more accessible. Going into a collaborative case with only part of a team is like mountain climbing with only half of your gear. You might be able to get to the top of the mountain, but it will take longer and be a more miserable journey. You might not make it at all. So, be sure to have all the tools available.

Once you have your team in place, make sure you use your team members. Use the coaches to help when things are emotional. Use the financial specialists to figure out the money. Use the child specialist to make sure that your kids are OK. Don’t set up the team and then not use it. It’s like filling up a tool box with a full socket set, but only using one wrench.
See “Collaborative Practice Saves Money” by attorney Sandra Joan Morris.

2. Make sure that you are working hard. Getting divorced is very hard work. I advise my clients that they will work harder than they ever have at anything in their lives. Divorce is complicated and extraordinarily emotional work. You will get a lot of homework to complete between collaborative meetings. This may involve producing financial records or learning how to work out parenting disagreements with the other parent. Just sitting in a room and trying to be constructive with a spouse you are divorcing can be exhausting both emotionally and physically.

I can predict failure in a collaborative process when I am working harder to settle the case than my client. There should be no illusions. A lot will be asked of you. Don’t expect your team of professionals (as capable as they are) to do all the work for you. Ask often what you can do to move the ball down the field.

3. Get your homework done on time (maybe even early). You will be given assignments between sessions like gathering financial data, preparing forms or working with your children. If the homework required for a scheduled meeting hasn’t been done, the meeting will be a waste. Your divorce will take longer. If you get your tasks completed on time, or even early, the meetings will go smoothly and your case will likely conclude on time.

4. Disclose Everything. That we are trying to be more informal and friendly does not relieve you of the responsibility to be completely truthful and open. The legal requirements for disclosure remain whether the case is collaborative or litigated. That means you disclose everything. That’s EVERYTHING.
Trust is the great lubricant of settlement. Collaborative practice relies on mutual trust and consensual resolution making openness essential. Completing the financial disclosures on time enables better trust. Without trust and openness, you probably won’t be able to settle and you will end up in court. Besides, the law is very clear that disclosure is required. Suffice it to say that the California Courts have broad power to punish a non-disclosing party. (For a primer on California’s strict disclosure rules, click here.)

5. Be patient. You will not solve every issue in your first meeting. The first several meetings often only set the stage for settlement later. There is a reason for this. Information needs to be gathered. Emotions need to be controlled. Children’s concerns need to be addressed. Divorces are complicated with many legal issues and difficult emotions. If you are patient, stick to it and rely on your team, your chances of success increase.

6. Relax and don’t panic. Legal disputes are frightening. Legal disputes about your family are paralyzing. Sometimes individuals succumb to “fight or flight,” that tremendous adrenaline response that saved our ancestors from being eaten by the saber tooth tiger. That’s great when you are trying not to be eaten. It’s not so great when aiming for a peaceful settlement.

When things get difficult, it’s easy to panic and run to court. Instead, engage your team when things get difficult. A skilled collaborative team can help you find a solution to a difficulty much faster and more creatively than court ever could.
See “The Emotional Roller Coaster of Divorce” by Pauline H. Tesler, M.A., J.D., & Peggy Thompson, Ph.D.

7. Talk Less. Listen More. To find a settlement, it will be important to hear and understand what your spouse is saying and feeling. You should get your story out. But don’t do it at the expense of missing your spouse’s point of view. Looking at the world from your spouse’s point of view will help you find a solution that works for both of you.

Importantly, don’t forget to listen to your professional team. They have been through a lot more divorces than you and will have suggestions that you may not think of on your own. Take time to hear and internalize what is being said.

8. Don’t think win or lose. Focus on solutions. The terms “justice” and “fairness” mean different things for different people. You don’t have to win everything. Divorce doesn’t need to be a competition. Rather, divorce presents problems for which there are solutions. The challenge is to find the solutions.

Instead of “fairness” or “winning,” try to make good business decisions. Settling your case is its own victory. Taking the decision away from a judge and keeping it with the parties is empowering. Ending conflict is liberating.

9. Have an open mind. It’s easy to get locked into preconceived notions. In all collaborative practice cases, time is spent brainstorming to find creative solutions. In brain storming, there are no bad ideas. It’s a great way to find many possible and more creative options.

One old parable involves two women fighting over an orange. Foolishly, the two women simply cut the orange in half to settle their dispute without considering what each wanted from the orange. This was a poor solution as it failed to address each woman’s real interests. One woman wanted to use the zest while the other wanted the pulp for juicing. Had they sought a solution that truly addressed their needs rather than taking the most obvious option, they would have found a better way.
Collaborative Practice takes openness, hard work and a good team. Collaborative Practice helps people move forward with dignity. The strategies listed above can help you to successfully settle in a respectful and dignified process. Here are some links with more information about collaborative practice:

Read more at Collaborative Family Law Group of San Diego.

GrizzlyLaw.com > Collaborative Divorce Agreements

From Kay Lynn Lee, Esq.:

Divorce is an ugly 7-letter word: if you have children, it is worse. Many attorneys in states other than Montana offer what’s called “collaborative” divorces. Because of its size, and the lack of sufficient numbers of attorneys (yes, I’m saying there aren’t enough attorneys, contrary to popular belief!), a completely structured collaborative law process or statute in Montana is just a gleam in my eye. . .however, a form of collaboration will work here and is currently working in the Kalispell area. Here’s what it’s about:

Under a collaborative system, the parties agree from the get go that they will try NOT to litigate their issues (unless the process of negotiating completely breaks down). They each have an attorney and the process of disclosures/division of assets and liabilities, crafting a parenting plan, and dealing with maintenance and child support is done, if not face-to-face, then at least in a cooperative setting. The attorneys that are hired must sign an agreement that they, themselves, will not represent either party in any litigation that does occur, if any.
The key here is cooperation; relationships involving domestic violence, abuse of any nature or mental illnesses usually won’t work collaboratively.

The parties also, if necessary, hire jointly any “experts” they may need including appraisers, parenting evaluators, psychologist/psychiatrists, GAL(s) for the children or a mediator, etc, so that, instead of a battle of experts, the parties cooperatively disclose everything they should to a single expert in the necessary field of expertise, and that expert’s evaluation and recommendations are, essentially, binding on both parties. The key here is cooperation; relationships involving domestic violence, abuse of any nature or mental illnesses usually won’t work collaboratively.

I practice a modified version of the above in my firm as most family lawyers in Kalispell and elsewhere in Montana try to work out resolutions that are in the best interests of all the family members, which is how a divorce should be resolved! If an appraisal of a home, for example, is needed, a qualified appraiser or realtor can be used by both parties. This avoids “expert-shopping” and, more importantly, conflict.

Can this work for you? A divorce that works for the whole family? It should, and it can.

Read more at GrizzlyLaw.com.

Categories Uncategorized

GrizzlyLaw.com > Collaborative Divorce Agreements

From Kay Lynn Lee, Esq.:

Divorce is an ugly 7-letter word: if you have children, it is worse. Many attorneys in states other than Montana offer what’s called “collaborative” divorces. Because of its size, and the lack of sufficient numbers of attorneys (yes, I’m saying there aren’t enough attorneys, contrary to popular belief!), a completely structured collaborative law process or statute in Montana is just a gleam in my eye. . .however, a form of collaboration will work here and is currently working in the Kalispell area. Here’s what it’s about:

Under a collaborative system, the parties agree from the get go that they will try NOT to litigate their issues (unless the process of negotiating completely breaks down). They each have an attorney and the process of disclosures/division of assets and liabilities, crafting a parenting plan, and dealing with maintenance and child support is done, if not face-to-face, then at least in a cooperative setting. The attorneys that are hired must sign an agreement that they, themselves, will not represent either party in any litigation that does occur, if any.
The key here is cooperation; relationships involving domestic violence, abuse of any nature or mental illnesses usually won’t work collaboratively.

The parties also, if necessary, hire jointly any “experts” they may need including appraisers, parenting evaluators, psychologist/psychiatrists, GAL(s) for the children or a mediator, etc, so that, instead of a battle of experts, the parties cooperatively disclose everything they should to a single expert in the necessary field of expertise, and that expert’s evaluation and recommendations are, essentially, binding on both parties. The key here is cooperation; relationships involving domestic violence, abuse of any nature or mental illnesses usually won’t work collaboratively.

I practice a modified version of the above in my firm as most family lawyers in Kalispell and elsewhere in Montana try to work out resolutions that are in the best interests of all the family members, which is how a divorce should be resolved! If an appraisal of a home, for example, is needed, a qualified appraiser or realtor can be used by both parties. This avoids “expert-shopping” and, more importantly, conflict.

Can this work for you? A divorce that works for the whole family? It should, and it can.

Read more at GrizzlyLaw.com.

Categories Uncategorized

Curtis Cowan Law > Collaborative Divorce: Better, Cheaper, and the Wave of the Future

From Curtis Cowan, Esq.:

Want a cheaper, less stressful, fairer divorce process? The Collaborative Divorce Process is the answer! Unfortunately, the public is currently mostly unaware of the Collaborative Divorce Process and its tremendous benefits. Even most family-law attorneys, unless they have been trained in the Collaborative Divorce Process, have not embraced the Collaborative Divorce Process mostly due to a lack of understanding and misconceptions about it.


Let me say up front that the Collaborative Divorce Process is today what the home computer was in 1981. In 1977, Ken Olsen, the founder and CEO of Digital Equipment Corporation purportedly said, “There is no reason for any individual to have a computer in his home.” Four years later IBM began to market its first home computer, but few people had them. What would a home be today without a computer or several computers? I’ve heard many family-law attorneys say, “Why would anyone use the Collaborative Divorce Process that precludes his/her attorney from representing them in court?” Well, the truth is too few divorcing couples today are utilizing the Collaborative Divorce Process. However, just as the use of home computers exploded as their costs and uses improved with public knowledge, the Collaborative Divorce Process will become the standard for divorcing couples in the future as knowledge of its costs and benefits become generally known.

Most uninformed attorneys believe it is merely a process whereby everyone, including the attorneys, tries to “play nice” and is, therefore, not suited for most spouses who are at great odds with each other – even hate each other. The belief is that most high-conflict couples will end up in court anyway, and it would be a waste not to be able to use the attorneys that started the process. That is one of the biggest misconceptions about the Collaborative Divorce Process, among many others. To the contrary, the Collaborative Divorce Process is ideal for spouses in high conflict. There are many advantages to the Collaborative Divorce Process for all couples seeking dissolution of their marriage, regardless of their level of feelings toward each other. Collaborative Divorce is a safe, structured, private and confidential process. The spouses maintain complete control of the outcome. The process involves “interest-based” negotiations. The spouses engage truly neutral professionals, except for the attorneys.

The process is designed to meet both spouses’ goals and interests as much as possible. It promotes a creative result, not bound by the law. In the Collaborative Divorce Process, attorneys are not neutral and still zealously “advocate” on behalf of their clients, but the attorneys’ method of thinking and advocacy is geared toward creative problem-solving resolutions, not toward an adversarial presentation to a judge.

This different frame of mind of the attorney is critical to the success of the Collaborative Divorce Process. The resolution does not rest in the hands of a judge or on the strict rule of law.
There are three primary principles defining the Collaborative Divorce Process: First, each spouse agrees with his/her attorney that the attorney is precluded from taking any issue to the court for resolution. If the spouses are unable to reach an agreement and must resort to the court, they must obtain new counsel to represent them in court. While at first blush this may seem harsh and unreasonable, the rule is one of the main reasons the Collaborative Divorce Process works so well. This requirement guarantees that both participating attorneys will be totally and exclusively motivated to have the process succeed. If the attorneys still have the fall-back option of going to court, the mandatory confidentiality of the Collaborative Process would be destroyed, the attorneys’ thought process would not properly transform into the required and different collaborative mode, and the option of litigating the case would actually stifled the required creative thinking of the attorney. The attorneys must be 100% focused on achieving an agreement, not planning for possible fall-back litigation. Because collaborative attorneys cannot litigate on behalf of their clients in court, all participants are fully invested in finding the “workable and realistic solutions” to all problems, as opposed to a “court-dictated resolution.”

Additionally, the method and manner that attorneys typically negotiate on behalf of clients is greatly improved by the certainty that the attorney will never litigate the case. When litigation is still an option during negotiations, attorneys typically hold things back so as not to disclose fully their hand or strategy. The attorneys’ subconscious minds, if not their conscious minds, continue to play the “what will I do and how will I present to the court if we don’t settle” game.

Knowing one has a fall-back option if settlement is not successful naturally makes settlement less likely to occur. In the Collaborative Divorce Process the attorneys’ cooperation, trust for one another, and openness are substituted for the traditional adversarial threats, secrecy, and guardedness, making it much more likely ultimate success is achieved.

Second, the process is based on “transparency.” Everyone agrees to exchange all relevant information and all experts are neutral. There is no need for formal expensive discovery requests and hearings to obtain information. All relevant information is readily and quickly disclosed. In traditional litigation an enormous amount of time and money is usually spent gathering information that is often not readily forthcoming. The information is almost always finally obtained after months and months of effort. In the Collaborative Divorce Process, it is fundamental that no relevant fact or data is hidden. This is only a problem for those spouses who want to be dishonest. A spouse who wants to be dishonest is free to go the traditional route and spend tens of thousands of dollars trying to be secretive, which will 95% of the time backfire on them after great expense.

“Transparency” is critical to the Collaborative Divorce Process. A spouse may despise the other spouse, but still must be willing to be honest. In the future, traditional litigation will only be used when one of the spouses wants to be dishonest – a telling sign for disaster.
Third, the focus on reaching an agreement is based on “interest-based” negotiations, seeking creative solutions that work for the entire family, not necessarily based on the rule of law. Interest-based negotiations identify the real priorities and interests of each spouse, the needs of the children, and the common goals for the family. The negotiations encourage empathy and acknowledgment that the parties may need to be connected well into the future. Interest-based negotiations seek creative solutions to satisfy the parties’ common goals and adverse interests, irrespective as to what the law may otherwise provide. Judges are bound to follow the law; they only have discretion in determining the facts to apply to the law. The law, however, is not fact specific.

The law when applied to unique situations is not always fair or does justice. Thus, the law is often irrelevant in interest-based solutions. Interest-based negotiations recognize the uniqueness of every family and that the legal solution for one family is not appropriate for all families.

The Collaborative Divorce Process is also very structured. At the initial joint meeting, the spouses and participants sign a “Participation Agreement,” which sets forth the goals, rules and processes to be followed. Collaborative Divorce involves joint meetings with all participants following a specific agenda. The joint sessions are followed up by debriefing meetings between the attorneys and professionals. A Collaborative “Team” is created, consisting of the parties, their respective attorneys and the neutral professionals.
Typically the most common neutral professionals are financial experts (CPA’s; financial planners) and a qualified mental health facilitator. As with the attorneys, these neutral professionals should be specifically trained in the collaborative process as their roles completely differ from traditional litigation.

Many spouses wonder why a mental health professional is even needed as part of the Team. However, the mental health professional plays a very important key role in the success of the collaborative process as they are the Team’s process facilitators. Although trained and licensed as a mental health professional, including collaborative training, this professional is often referred to as the Team’s Neutral Process Facilitator. The mental health professional does not act as a therapist treating the spouses. Rather, they use specific unique tools for emotional regulation, keep the focus on the enduring needs of all family members, focus on short-term interventions and keep the Team in the process toward a joint solution. They attend all joint meetings, set the agenda, set up the dynamics of the room, manage the emotions during meetings, assist in developing a co-parenting relationship, and offer creative solutions. The list of the value of a mental health professional is endless. Divorce is a major, emotional change in life, regardless as to whether the spouses are cooperative or at war. The mental health professional will listen to each party’s story, make referrals when necessary, and help the process move forward whenever it seems to stall.

In the debriefing meetings, the mental health professional summarizes what went well, what did not go well, and provide constructive feedback on the how to move forward. The role of the mental health professional in the Collaborative Divorce Process is perhaps the biggest distinction between collaborative and traditional litigation. There is no equivalent process facilitator in the court litigation system, which is one to the greatest flaws of the court litigation system.

Other possible neutral professionals may include child specialists, corporate, tax, and estate attorneys, business and real estate appraisers, and insurance consultants, as well as others. While these other professionals are not always needed, the concept of all neutral professionals as Team members is to have the most qualified neutral professional doing what he or she does best when such services are needed.

So, you ask, “How is all this cheaper and less stressful than traditional dissolution of marriage litigation?” Good question! First let’s compare the two. Litigation is based on a blame game and is demoralizing, dehumanizing and generally destructive to families. It breaks families apart, but offers no solution for healing and recovery. Litigation gives 100% of the power of resolution to a third party (Judge), who knows nothing about the true dynamics of the family, except as to the conflicting facts presented, often by biased conflicting experts, at trial. Judges determine parenting plans and economics only.

They do not resolve emotions or relationships. No judge has ever enhanced a relationship between divorcing couples. Collaborative Divorce, on the other hand, concentrates on how to solve problems, not who is at fault for them, and the spouses themselves, with the aid of their attorneys dedicated to resolution as opposed to judicial persuasion and truly neutral professionals, maintain 100% of the power to decide their own outcome. Collaborative Divorce can assist with the emotional aspects of divorce and can enhance the future relationship of parents who have children. It empowers the spouses with the tools and ability for hearing and recovery.

Litigation is adversarial in nature.

Attorneys attempt to marshal the facts in favor of their clients and attempt to persuade the judge to find in their respective client’s favor. In the Collaborative Divorce Process, attorneys, while remaining advocates for their clients, are more concerned with reaching an agreed resolution that solves problems, not exacerbate them.

Most litigation cases involve multiple pre-judgment hearings before the judge, a long expensive discovery process, and ultimately preparation for and attendance at trial. Typically a contested divorce will take 17 months (often longer) from filing to final judgment. In the Collaborative Divorce Process, there are no court hearings, discovery is quick and easy, and there is no preparation for or attendance at trial. Typically a Collaborative Divorce will take about 17 weeks from inception to agreement.
When experts are needed in traditional litigation, each party usually hires his/her own experts, and the experts are not neutral, but rather biased in favor of his/her client. The experts in Collaborative Divorce are not only specifically trained in the collaborative process, but are also trained as neutrals.

All attorneys and experts bill by the hour. Because significantly many more hours are spent in traditional litigation than in the Collaborative Divorce Process, the Collaborative Divorce Process is usually much less expensive.

I am absolutely convinced that the Collaborative Divorce Process is far superior to the traditional adversarial litigation process. It is better for the parties; it is less expensive and time consuming; and it is the wave of the future.

Read more at Curtis Cowan Law.

Curtis Cowan Law > Collaborative Divorce: Better, Cheaper, and the Wave of the Future

From Curtis Cowan, Esq.:

Want a cheaper, less stressful, fairer divorce process? The Collaborative Divorce Process is the answer! Unfortunately, the public is currently mostly unaware of the Collaborative Divorce Process and its tremendous benefits. Even most family-law attorneys, unless they have been trained in the Collaborative Divorce Process, have not embraced the Collaborative Divorce Process mostly due to a lack of understanding and misconceptions about it.


Let me say up front that the Collaborative Divorce Process is today what the home computer was in 1981. In 1977, Ken Olsen, the founder and CEO of Digital Equipment Corporation purportedly said, “There is no reason for any individual to have a computer in his home.” Four years later IBM began to market its first home computer, but few people had them. What would a home be today without a computer or several computers? I’ve heard many family-law attorneys say, “Why would anyone use the Collaborative Divorce Process that precludes his/her attorney from representing them in court?” Well, the truth is too few divorcing couples today are utilizing the Collaborative Divorce Process. However, just as the use of home computers exploded as their costs and uses improved with public knowledge, the Collaborative Divorce Process will become the standard for divorcing couples in the future as knowledge of its costs and benefits become generally known.

Most uninformed attorneys believe it is merely a process whereby everyone, including the attorneys, tries to “play nice” and is, therefore, not suited for most spouses who are at great odds with each other – even hate each other. The belief is that most high-conflict couples will end up in court anyway, and it would be a waste not to be able to use the attorneys that started the process. That is one of the biggest misconceptions about the Collaborative Divorce Process, among many others. To the contrary, the Collaborative Divorce Process is ideal for spouses in high conflict. There are many advantages to the Collaborative Divorce Process for all couples seeking dissolution of their marriage, regardless of their level of feelings toward each other. Collaborative Divorce is a safe, structured, private and confidential process. The spouses maintain complete control of the outcome. The process involves “interest-based” negotiations. The spouses engage truly neutral professionals, except for the attorneys.

The process is designed to meet both spouses’ goals and interests as much as possible. It promotes a creative result, not bound by the law. In the Collaborative Divorce Process, attorneys are not neutral and still zealously “advocate” on behalf of their clients, but the attorneys’ method of thinking and advocacy is geared toward creative problem-solving resolutions, not toward an adversarial presentation to a judge.

This different frame of mind of the attorney is critical to the success of the Collaborative Divorce Process. The resolution does not rest in the hands of a judge or on the strict rule of law.
There are three primary principles defining the Collaborative Divorce Process: First, each spouse agrees with his/her attorney that the attorney is precluded from taking any issue to the court for resolution. If the spouses are unable to reach an agreement and must resort to the court, they must obtain new counsel to represent them in court. While at first blush this may seem harsh and unreasonable, the rule is one of the main reasons the Collaborative Divorce Process works so well. This requirement guarantees that both participating attorneys will be totally and exclusively motivated to have the process succeed. If the attorneys still have the fall-back option of going to court, the mandatory confidentiality of the Collaborative Process would be destroyed, the attorneys’ thought process would not properly transform into the required and different collaborative mode, and the option of litigating the case would actually stifled the required creative thinking of the attorney. The attorneys must be 100% focused on achieving an agreement, not planning for possible fall-back litigation. Because collaborative attorneys cannot litigate on behalf of their clients in court, all participants are fully invested in finding the “workable and realistic solutions” to all problems, as opposed to a “court-dictated resolution.”

Additionally, the method and manner that attorneys typically negotiate on behalf of clients is greatly improved by the certainty that the attorney will never litigate the case. When litigation is still an option during negotiations, attorneys typically hold things back so as not to disclose fully their hand or strategy. The attorneys’ subconscious minds, if not their conscious minds, continue to play the “what will I do and how will I present to the court if we don’t settle” game.

Knowing one has a fall-back option if settlement is not successful naturally makes settlement less likely to occur. In the Collaborative Divorce Process the attorneys’ cooperation, trust for one another, and openness are substituted for the traditional adversarial threats, secrecy, and guardedness, making it much more likely ultimate success is achieved.

Second, the process is based on “transparency.” Everyone agrees to exchange all relevant information and all experts are neutral. There is no need for formal expensive discovery requests and hearings to obtain information. All relevant information is readily and quickly disclosed. In traditional litigation an enormous amount of time and money is usually spent gathering information that is often not readily forthcoming. The information is almost always finally obtained after months and months of effort. In the Collaborative Divorce Process, it is fundamental that no relevant fact or data is hidden. This is only a problem for those spouses who want to be dishonest. A spouse who wants to be dishonest is free to go the traditional route and spend tens of thousands of dollars trying to be secretive, which will 95% of the time backfire on them after great expense.

“Transparency” is critical to the Collaborative Divorce Process. A spouse may despise the other spouse, but still must be willing to be honest. In the future, traditional litigation will only be used when one of the spouses wants to be dishonest – a telling sign for disaster.
Third, the focus on reaching an agreement is based on “interest-based” negotiations, seeking creative solutions that work for the entire family, not necessarily based on the rule of law. Interest-based negotiations identify the real priorities and interests of each spouse, the needs of the children, and the common goals for the family. The negotiations encourage empathy and acknowledgment that the parties may need to be connected well into the future. Interest-based negotiations seek creative solutions to satisfy the parties’ common goals and adverse interests, irrespective as to what the law may otherwise provide. Judges are bound to follow the law; they only have discretion in determining the facts to apply to the law. The law, however, is not fact specific.

The law when applied to unique situations is not always fair or does justice. Thus, the law is often irrelevant in interest-based solutions. Interest-based negotiations recognize the uniqueness of every family and that the legal solution for one family is not appropriate for all families.

The Collaborative Divorce Process is also very structured. At the initial joint meeting, the spouses and participants sign a “Participation Agreement,” which sets forth the goals, rules and processes to be followed. Collaborative Divorce involves joint meetings with all participants following a specific agenda. The joint sessions are followed up by debriefing meetings between the attorneys and professionals. A Collaborative “Team” is created, consisting of the parties, their respective attorneys and the neutral professionals.
Typically the most common neutral professionals are financial experts (CPA’s; financial planners) and a qualified mental health facilitator. As with the attorneys, these neutral professionals should be specifically trained in the collaborative process as their roles completely differ from traditional litigation.

Many spouses wonder why a mental health professional is even needed as part of the Team. However, the mental health professional plays a very important key role in the success of the collaborative process as they are the Team’s process facilitators. Although trained and licensed as a mental health professional, including collaborative training, this professional is often referred to as the Team’s Neutral Process Facilitator. The mental health professional does not act as a therapist treating the spouses. Rather, they use specific unique tools for emotional regulation, keep the focus on the enduring needs of all family members, focus on short-term interventions and keep the Team in the process toward a joint solution. They attend all joint meetings, set the agenda, set up the dynamics of the room, manage the emotions during meetings, assist in developing a co-parenting relationship, and offer creative solutions. The list of the value of a mental health professional is endless. Divorce is a major, emotional change in life, regardless as to whether the spouses are cooperative or at war. The mental health professional will listen to each party’s story, make referrals when necessary, and help the process move forward whenever it seems to stall.

In the debriefing meetings, the mental health professional summarizes what went well, what did not go well, and provide constructive feedback on the how to move forward. The role of the mental health professional in the Collaborative Divorce Process is perhaps the biggest distinction between collaborative and traditional litigation. There is no equivalent process facilitator in the court litigation system, which is one to the greatest flaws of the court litigation system.

Other possible neutral professionals may include child specialists, corporate, tax, and estate attorneys, business and real estate appraisers, and insurance consultants, as well as others. While these other professionals are not always needed, the concept of all neutral professionals as Team members is to have the most qualified neutral professional doing what he or she does best when such services are needed.

So, you ask, “How is all this cheaper and less stressful than traditional dissolution of marriage litigation?” Good question! First let’s compare the two. Litigation is based on a blame game and is demoralizing, dehumanizing and generally destructive to families. It breaks families apart, but offers no solution for healing and recovery. Litigation gives 100% of the power of resolution to a third party (Judge), who knows nothing about the true dynamics of the family, except as to the conflicting facts presented, often by biased conflicting experts, at trial. Judges determine parenting plans and economics only.

They do not resolve emotions or relationships. No judge has ever enhanced a relationship between divorcing couples. Collaborative Divorce, on the other hand, concentrates on how to solve problems, not who is at fault for them, and the spouses themselves, with the aid of their attorneys dedicated to resolution as opposed to judicial persuasion and truly neutral professionals, maintain 100% of the power to decide their own outcome. Collaborative Divorce can assist with the emotional aspects of divorce and can enhance the future relationship of parents who have children. It empowers the spouses with the tools and ability for hearing and recovery.

Litigation is adversarial in nature.

Attorneys attempt to marshal the facts in favor of their clients and attempt to persuade the judge to find in their respective client’s favor. In the Collaborative Divorce Process, attorneys, while remaining advocates for their clients, are more concerned with reaching an agreed resolution that solves problems, not exacerbate them.

Most litigation cases involve multiple pre-judgment hearings before the judge, a long expensive discovery process, and ultimately preparation for and attendance at trial. Typically a contested divorce will take 17 months (often longer) from filing to final judgment. In the Collaborative Divorce Process, there are no court hearings, discovery is quick and easy, and there is no preparation for or attendance at trial. Typically a Collaborative Divorce will take about 17 weeks from inception to agreement.
When experts are needed in traditional litigation, each party usually hires his/her own experts, and the experts are not neutral, but rather biased in favor of his/her client. The experts in Collaborative Divorce are not only specifically trained in the collaborative process, but are also trained as neutrals.

All attorneys and experts bill by the hour. Because significantly many more hours are spent in traditional litigation than in the Collaborative Divorce Process, the Collaborative Divorce Process is usually much less expensive.

I am absolutely convinced that the Collaborative Divorce Process is far superior to the traditional adversarial litigation process. It is better for the parties; it is less expensive and time consuming; and it is the wave of the future.

Read more at Curtis Cowan Law.

Divorce Attorney South Africa > Collaborative Family & Divorce Law In South Africa

From Bertus Preller, Esq.:

The adversarial court system in South Africa is often not well-suited for resolving family law disputes. For this reason, I often question our ability to help clients heal and move forward with their lives in a productive and constructive manner.

In a court, legal representatives are constrained by the principles and rules of law which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole, our laws, our courts, court rules, and legal institutions – values and rewards ‘victory’ at any cost and this makes it difficult for us to focus on the post-divorce needs of clients.

Despite any intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened South African court system is not able to provide.

The mere fact that the judiciary is not in a position to gain more than a superficial understanding of the dynamics of any family, divorce attorneys find it challenging to maintain a balanced professional relationship with a family law client. The client’s perception is that he/she has few options and very little control over the outcome. When the divorce attorney explains that the courts are subjective, impatient, slow and inconsistent, it undermines the client’s confidence in the legal process during one of the most stressful periods in his life. The attorney has the delicate task of managing the client’s expectations while trying to give the client some confidence that the court process will meet his needs. The result is a difficult dynamic that causes many divorce attorneys to grind their teeth whenever a client call.

Most family law attorneys interact with child experts and other mental health professionals who can assist families in using their resources to create a more stable life for themselves after a separation or divorce. However, in a divorce trial setting, divorce attorneys and advocates are often forced to blindly refute or defend these experts’ recommendations. Often, the information is not used as a guide for the clients but as a weapon against the client’s spouse.

Several years ago, Stuart Webb, a lawyer in the United States of America decided that he wanted to make a positive difference in most cases and pledged to himself and his legal community that he would find a way to practise family law in a principled manner. His commitment resulted in an international movement known as ‘collaborative law’, which is practised in many countries, including the USA, Canada, Australia, New Zealand, the United Kingdom, Ireland, Germany, Austria and the Netherlands.

Webb analysed the court-based system and concluded that, in most instances, if a client resorted to the court or even threatened to do so, it resulted in a powerful disequilibrium. For most clients, the reconstruction of the family after court intervention was at best delayed and at worst unattainable.

Webb bravely decided to make his own practice ‘court-free’ and advised his legal community that any case in which he was involved had to be settled. His idea and its implementation were tactically very astute. When the lawyers and their clients adopt the ‘no court’ rule, any opportunity to strong-arm, bully or pressure is removed because such tactics are no longer effective in the settlement environment. Absent ultimatums, both lawyers and their clients can explore settlement in an atmosphere of cooperation.

Collaborative law is a ‘one-idea’ or ‘one-rule’ process: There is a contractual requirement that the collaborative attorney and all members of his firm must withdraw if the matter goes into litigation. This requirement is set forth in the participation agreement, which is signed by both parties and both attorneys. It provides that the clients must retain new litigation counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.

The lawyers limit the scope of their representation to collaborative law negotiations. The lawyer and client enter into a separate retained agreement wherein the client acknowledges the limited scope of the lawyer’s representation (for settlement purposes only) and acceptance of the waiver of the lawyer/client privilege during settlement meetings. The agreement also contains commitments to voluntary full disclosure.

The process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions. Negotiations are interest-based rather than positional.

The participation agreement also provides that the substance of all negotiations is confidential and thereby creates a safe environment where clients can freely explore different options to meet their goals and needs.

In the collaborative law process all participants form a team with a common goal: To concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up. Impasse becomes a challenge rather than an opportunity to assign blame, and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and assist in brainstorming options for resolution of the issues.

Collaborative law training assists lawyers in accomplishing the shift from ‘warrior’ to ‘facilitator’. Traditionally, the client provides a set of facts and we rush to reconstruct them into a ‘triable issue’. A collaborative lawyer assists the client in formulating a forward-looking set of goals and understanding the goals of his spouse. A collaborative lawyer does not solicit a recitation of woes, but encourage the client to take a broad view. The lawyer must be vigilant not to raise expectations of a particular outcome. The choice of the collaborative law process provides a framework for the client to work towards his broad goals with the lawyer’s support and assistance.

Collaborative law has been expanded to include financial and mental health professionals as members of the professional team. Financial professionals, such as accountants, financial planners and appraisers assist with the financial details of the settlement. Mental health professionals help design a parenting plan and act as facilitators. Although this team approach may seem costly to the family, the total cost is often the same as in a lawyer-only model because the assistance provided by other professionals results in more efficient, focused negotiations. The allied professionals can help facilitate discussions and formulate options for resolution. Together, the professionals and clients leave behind the troubled history of ‘winning battles but losing wars’ that has left so many families without a road map for rebuilding their lives and those of their children after divorce.

The effect of collaborative law on family Law attorneys is overwhelmingly positive. It dramatically improves the relationship between attorneys and eliminates litigation surprises and stressful relationships with clients resulting from unrealistic expectations. The focus shifts from differences to commonalities. All possible assistance is provided to help formulate a plan for restructuring the post-separation family.

The clients cannot abdicate responsibility to their lawyers and cannot use judicial discretion as a sword or a shield. Planning for the best outcome is their responsibility and requires their full participation. They ultimately decide their own future and the future of their children with the assistance of the professionals.

Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s representative is present during negotiations to provide support and legal advice and to manage the process. Legal advice is concurrent with and integrated in negotiations.

The collaborative lawyer meets with his clients between negotiation meetings to prepare for the next meeting. The lawyer also assists the client in expressing his or needs and concerns during the meetings. Many clients prefer to have a representative present during negotiations, particularly where there is a power imbalance between the parties.

Read more at Divorce Attorney South Africa.

Divorce Attorney South Africa > Collaborative Family & Divorce Law In South Africa

From Bertus Preller, Esq.:

The adversarial court system in South Africa is often not well-suited for resolving family law disputes. For this reason, I often question our ability to help clients heal and move forward with their lives in a productive and constructive manner.

In a court, legal representatives are constrained by the principles and rules of law which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole, our laws, our courts, court rules, and legal institutions – values and rewards ‘victory’ at any cost and this makes it difficult for us to focus on the post-divorce needs of clients.

Despite any intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened South African court system is not able to provide.

The mere fact that the judiciary is not in a position to gain more than a superficial understanding of the dynamics of any family, divorce attorneys find it challenging to maintain a balanced professional relationship with a family law client. The client’s perception is that he/she has few options and very little control over the outcome. When the divorce attorney explains that the courts are subjective, impatient, slow and inconsistent, it undermines the client’s confidence in the legal process during one of the most stressful periods in his life. The attorney has the delicate task of managing the client’s expectations while trying to give the client some confidence that the court process will meet his needs. The result is a difficult dynamic that causes many divorce attorneys to grind their teeth whenever a client call.

Most family law attorneys interact with child experts and other mental health professionals who can assist families in using their resources to create a more stable life for themselves after a separation or divorce. However, in a divorce trial setting, divorce attorneys and advocates are often forced to blindly refute or defend these experts’ recommendations. Often, the information is not used as a guide for the clients but as a weapon against the client’s spouse.

Several years ago, Stuart Webb, a lawyer in the United States of America decided that he wanted to make a positive difference in most cases and pledged to himself and his legal community that he would find a way to practise family law in a principled manner. His commitment resulted in an international movement known as ‘collaborative law’, which is practised in many countries, including the USA, Canada, Australia, New Zealand, the United Kingdom, Ireland, Germany, Austria and the Netherlands.

Webb analysed the court-based system and concluded that, in most instances, if a client resorted to the court or even threatened to do so, it resulted in a powerful disequilibrium. For most clients, the reconstruction of the family after court intervention was at best delayed and at worst unattainable.

Webb bravely decided to make his own practice ‘court-free’ and advised his legal community that any case in which he was involved had to be settled. His idea and its implementation were tactically very astute. When the lawyers and their clients adopt the ‘no court’ rule, any opportunity to strong-arm, bully or pressure is removed because such tactics are no longer effective in the settlement environment. Absent ultimatums, both lawyers and their clients can explore settlement in an atmosphere of cooperation.

Collaborative law is a ‘one-idea’ or ‘one-rule’ process: There is a contractual requirement that the collaborative attorney and all members of his firm must withdraw if the matter goes into litigation. This requirement is set forth in the participation agreement, which is signed by both parties and both attorneys. It provides that the clients must retain new litigation counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.

The lawyers limit the scope of their representation to collaborative law negotiations. The lawyer and client enter into a separate retained agreement wherein the client acknowledges the limited scope of the lawyer’s representation (for settlement purposes only) and acceptance of the waiver of the lawyer/client privilege during settlement meetings. The agreement also contains commitments to voluntary full disclosure.

The process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions. Negotiations are interest-based rather than positional.

The participation agreement also provides that the substance of all negotiations is confidential and thereby creates a safe environment where clients can freely explore different options to meet their goals and needs.

In the collaborative law process all participants form a team with a common goal: To concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up. Impasse becomes a challenge rather than an opportunity to assign blame, and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and assist in brainstorming options for resolution of the issues.

Collaborative law training assists lawyers in accomplishing the shift from ‘warrior’ to ‘facilitator’. Traditionally, the client provides a set of facts and we rush to reconstruct them into a ‘triable issue’. A collaborative lawyer assists the client in formulating a forward-looking set of goals and understanding the goals of his spouse. A collaborative lawyer does not solicit a recitation of woes, but encourage the client to take a broad view. The lawyer must be vigilant not to raise expectations of a particular outcome. The choice of the collaborative law process provides a framework for the client to work towards his broad goals with the lawyer’s support and assistance.

Collaborative law has been expanded to include financial and mental health professionals as members of the professional team. Financial professionals, such as accountants, financial planners and appraisers assist with the financial details of the settlement. Mental health professionals help design a parenting plan and act as facilitators. Although this team approach may seem costly to the family, the total cost is often the same as in a lawyer-only model because the assistance provided by other professionals results in more efficient, focused negotiations. The allied professionals can help facilitate discussions and formulate options for resolution. Together, the professionals and clients leave behind the troubled history of ‘winning battles but losing wars’ that has left so many families without a road map for rebuilding their lives and those of their children after divorce.

The effect of collaborative law on family Law attorneys is overwhelmingly positive. It dramatically improves the relationship between attorneys and eliminates litigation surprises and stressful relationships with clients resulting from unrealistic expectations. The focus shifts from differences to commonalities. All possible assistance is provided to help formulate a plan for restructuring the post-separation family.

The clients cannot abdicate responsibility to their lawyers and cannot use judicial discretion as a sword or a shield. Planning for the best outcome is their responsibility and requires their full participation. They ultimately decide their own future and the future of their children with the assistance of the professionals.

Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s representative is present during negotiations to provide support and legal advice and to manage the process. Legal advice is concurrent with and integrated in negotiations.

The collaborative lawyer meets with his clients between negotiation meetings to prepare for the next meeting. The lawyer also assists the client in expressing his or needs and concerns during the meetings. Many clients prefer to have a representative present during negotiations, particularly where there is a power imbalance between the parties.

Read more at Divorce Attorney South Africa.

Family Law Blogspot > Cooperative Versus Collaborative Divorce

From Mary Commander, Esq.:

The worst type of divorce for everyone is a contested divorce. That is one where the decisions are left to a judge after the parties “fight it out” in court. This type of case exacts a great cost financially and emotionally.


A recent trend in the law has been to have the parties handle their divorces through the collaborative process. In this process, the parties and the professionals (who are trained to handle cases collaboratively) sign an Agreement which provides that all discussions will be held in the open and that there will be full disclosure. If there is not a successful resolution of the issues, the parties must hire different attorneys to take the matter to court. The collaborative meetings are held with the “team members” present. The parties will each have a divorce coach who is a mental health professional. If there are children, there may be a child specialist. There also may be a financial specialist to deal with the money and property issues. While the meetings can involve a significant expense, they still resolve cases with less expense than a contested case.

In a cooperative divorce, there is no requirement that all meetings be held as a group nor is there a requirement that new counsel be obtained if an agreement is not reached. The parties may be referred out to other experts on an as needed basis. These differences keep the cost down significantlt while achieving many of the same goals of collaborative divorce.

Read more at Family Law Blogspot.