What keeps more clients from electing collaborative divorce?

Last week, I attended my third collaborative law training and, as always, I left believing that everyone would choose collaborative divorce over the usual dog-fight if they would only stop and really think about what they’re doing.

Unhappy CoupleA collaborative law divorce is one in which the parties and their lawyers sign a collaborative law participation agreement, stipulating that neither party may resort to, or even threaten, court intervention.  The real genius of collaborative divorce is this; both lawyers must agree that they are disqualified from representing your or your spouse in court if the collaborative process breaks down.

This is profound.  What the collaborative model does is compel divorcing partners to own the problem and the solutions.  Sure, you still have your lawyer, but that lawyer becomes an adviser, counselor, and a guide as you consider options for settlement.  When needed, the collaborative team may call in a financial neutral or a mental health/communications neutral.  These professionals are, again, neutral and serve the collaborative team as they “live in the question.”

Collaborative divorce works.  Clients emerge from divorce, less scarred and more in control of their lives, knowing that the end result is of their own making.  Most of the time, they’ve found creative, out of the box answers to difficult conflicts and they’ve  adopted a communication strategy that will serve both them and their children in the years ahead.

So, why doesn’t everyone make theirs a collaborative divorce?  Here’s my take on the question.

1.  The emotional brain takes over.  If you’ve been hurt, really, really bad, you go crazy and just can’t think clearly (not that I would know!)   It’s what therapists call the “emotional brain… you know, fight or flight… or biology sending us into “safe mode.”    In the early days of a divorce, the emotional brain rules and you want to hurt someone.  That’s why the internet is drowning with otherwise wimpy lawyers standing with their arms crossed, telling you they’re aggressive and that they’re going to fight for you, hurt the person causing you pain so you can get revenge and win.    Really?

2.  You don’t want to own your divorce and control the outcome, you want your “aggressive” lawyer and that kind Judge at the courthouse to protect you and do the right thing once they hear the truth about your spouse.    Don’t believe everything you think.  Do you think your spouse is going to sit quietly while you go on about his or her every fault… and is any of this information even relevant?  Adversaries in divorce litigation have a way of neutralizing each other.  And Judges?  Most are conscientious, but you are asking them to make decisions that will affect you and your kids for life based on very little information.

3.  Too many lawyers don’t understand the collaborative divorce model, or are not comfortable with it, and steer clients towards litigation.   Divorce lawyers know court, trails and conflict.  And, it’s easy to put on the mask and play the role you know by heart.  Being a lawyer in collaborative divorce demands a broader skill set and interpersonal dealings that are foreign to many lawyers.  To be a collaborative divorce lawyer is to be human, it is to be genuine, to make mistakes.  Rather than venture into  this new way of practice where they are exposed and uncomfortable, far too many lawyer stay in their comfort zone and steer clients into an adversarial process that will not serve them.