Choosing an Attorney
Monday, 27 July 2015
The collaborative divorce process, an alternative divorce process, is gaining some traction as more professionals are trained and become experienced in the process. With its increased use, the general public is becoming more aware of the process and searching for its benefits.
While I do believe collaborative divorce is a better way for spouses to dissolve their marriage, I have some concerns about the expectations it creates and potential shortcomings. Simply put, it is not for everyone. Only when the parties feel comfortable joining one another with their professional team, and working out the details of their separation and possible issues related to children, can the process be productive and beneficial. If there has been a history of intimidation, excessive control, or abuse in the relationship, not necessarily violent, there is high risk that the "dance" of the marriage will continue and the process will not deliver the intended benefits. In fact, more damage may be inflicted upon one or both of the parties, sometimes like a silent oppressor, that results in poorer decisions made under adverse pressure.
At the heart of the collaborative process is the team approach which is designed to assist and protect the parties. In my opinion, the value that each of the full team professionals, two attorneys, mental health professional and financial professional, bring to the situation is what makes it work. Anything less than a full team is a flirtation with peril to clients. Unfortunately, it has become a rather common practice to utilize the collaborative process with less than full teams, thereby jeopardizing the long-term acceptance of the methodology as effective and appropriate.
Research conducted by the International Academy of Collaborative professionals (IACP) from October, 2006 through July, 2010, the latest available and reported, shows that only 44% of all collaborative cases included a mental health professional on the case and only 48% included a financial professional. Fully 42% of all cases in the survey were conducted by lawyers only, with no other core professionals. The reasons why the full team approach was developed for the collaborative process seem to have been marginalized as not meaningful or necessary. Again, I support the collaborative process, but only in its entirety. As an analogy: Even the best surgeons need teams around them to care for the patient. There are simply other needs to address that require other professionals with different expertise.
Divorce is difficult under any circumstances. Heightened emotions and raw pain clearly indicate the need for a mental health professional at the table at all times. This is not optional. Without this team member, all else will not happen as best as possible and do the collaborative process justice. As a financial professional, I have worked on cases where I was the only neutral and it was difficult. The situation was a disfavor to the clients and I will not do it again. When problematic situations develop, all eyes seem to seek some neutrality from the only neutral in the room and I was not equipped to deal with the situation as a therapist would. While any professional who works in the divorce arena likes to feel that they have some insights into the disciplines served by other professionals, and rightly so, we are not professional substitutes for one another, nor should we be.
As a financial professional, I firmly believe that every divorce requires the input of someone who is qualified in financial issues and, specifically, the financial nuances of divorce. No matter how "simple" or straightforward a case may seem, it is about money. If there are few assets, it may be more about debt which can be just as challenging. If it is so very simple, then brief involvement of a financial professional will be sufficient and prudent. Divorce is about money. Even the parenting issues have financial ramifications associated with them. Money is what the attorneys and clients spend the vast majority of time talking about. Since attorneys usually absolve themselves of responsibility for financial outcomes, it behooves them, for the sake of the client, to provide a professional who can accept that responsibility. In addition, the financial professional relieves the attorney of any related liabilities. The need for a financial professional is intensified in the collaborative process because the formal discovery process is exchanged for voluntary disclosure. Such exposure and vulnerability is, unfortunately, an invitation for abuse of the process by persons who intend to be less than forthcoming. It is altogether too easy to conceal and/or misrepresent assets, select the most desirable investments, and/or indirectly divert excessive tax responsibilities to the other party, etc. if there is no financial professional to explain the short and long term outcomes of such proposals.
I'm often told that it is the client who chooses not to have a full team. That begs a number of questions: Based on what information that they have been given? Who ever said that the "professional team" might not include the full team? On what basis have some of the professional team members become optional? Was this presented as a low-cost alternative and now more professional fees are proposed? Have the roles of each team member been explained in terms of benefits? Have possible consequences been explained when less that a full team is used? Have the options been presented as (a) full-team collaborative or (b) traditional litigationâ€¦Take your pick?
Collaborative divorce is sometimes presented as a more efficient process that will result in a more speedy divorce. Not necessarily. Efficiencies and speed will be determined by the parties themselves and/or by the professionals, not the process. Straight litigation, with productive and compromising proposals can be efficient and lead to speedy settlements. On the other hand, clients can waste a lot of time in collaborative meetings with dialog that they may have had with just one of the professionals or with each other. Likewise, professionals can foster inefficient discussions or allow difficulties to develop that could have been better resolved with a full team. The greatest value of collaborative divorce is the ability of the parties to feel better and more accepting of their agreements due to the process. It is a disservice to clients to oversell other benefits that cannot be assured. On the subject of time and efficiencies, the survey cited above also reported that 42% of all collaborative cases took more than nine months to conclude. Twenty-one percent took more than one year. This is not a convincing argument.
An additional thought about the speed of progress in the collaborative process: faster is not always better. I hear this "benefit" cited frequently because the collaborative process is subject only to the schedule limitations of the parties and the professionals. However, and I leave this ultimately to comment by the mental health professionals, sometimes one or both parties basically needs time to process all that they are experiencing. The party who has not initiated the divorce proceedings, and may have been somewhat "caught unaware" of how emotionally separated the initiating spouse had already become, may actually need to "catch up." To say that the collaborative process itself is going to facilitate a speedy settlement is misleading if one or both of the parties are unable to move through the process, or any process, at some artificially imposed pace.
Client satisfaction with any service is contingent upon managing expectations. In order to further the use and acceptance of collaborative divorce as a preferred process, all professionals will need to create accurate expectations that are consistent with prior experiences. As it stands, some expectations being cited to prospective clients are inconsistent with the research we have available. I would look forward to more updated data when it is available. In the meantime, I think we need to be true to what we know, recommend collaborative divorce on a selective basis, and take care to position ourselves for success with a process that is still referred to as an "Alternative."
For divorcing parties who may be considering the collaborative process, understand the reasons why it may be beneficial for you. The process itself will help you learn how to discuss family issues that may need to be revisited post-divorce, especially if children and future co-parenting are involved. In addition, this participatory and transparent process will be easier to accept, with its compromises, than a litigated contentious dialog where both parties may conclude that they have grudgingly "given in." And as painful as it may become, it will most likely be less painful and anxiety inducing than the more traditional litigation model. Collaborative may also be more efficient and economical if you and your spouse approach the process with more conciliatory postures than you might in litigation and actually enable some speed in the process or minimization of costs.
Posted on 07/27/2015 8:45 AM by Rosemary Frank
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