Many times a divorcing couple’s first stop is with a lawyer. Many are discovering that this may not be the best move but aren’t sure what else to do. My colleague, Boulder Collaborative Divorce Attorney Bert Dempsey wrote the following article, which first appeared in the Boulder County Business Report, October, 2003. It is used with permission. I’ve updated some information to make it current. Collaborative Divorce, especially, has come a long way since 2003.
What to Do When You Don’t Know What to Do
The time during a pending divorce is one of the most stressful and painful times in anyone’s life. The fear, conflict and anger can nearly paralyze a person’s actions and thought process. People react to this stress in many different ways. Some gather themselves together and are at their best. Others feel attacked and react from fear.
Some divorcing couples can sit down together and negotiate difficult parenting issues and the division of their property. Others need to make the trip to the courthouse, where they believe justice awaits. For a growing number of people who feel they need assistance with their issues but have no desire to litigate [to proceed in a court of law], mediation and collaborative law can be the best solution.
In the process of mediation the parties meet with a neutral third party who can direct them through a structured negotiation on all of the issues that must be addressed and agreed upon in the court documents. The mediator can identify issues that may need an expert, such as financial division and parenting matters, and advise the parties to seek professional advice before going on. A mediator’s roll is to provide neutral ground and structure for the process, but mediators cannot give legal advice to either party.
In the Collaborative Divorce process, each party has their own legal representative, so neither party feels they’ve been left to go it alone. The divorcing parties, their attorneys, a coach and financial advisor commit themselves to resolving the financial and child related issues through negotiation without resorting to court proceedings. Settlement is reached during a series of conferences that include some combination of professionals, husband, wife, and each of their attorneys. A Divorce Coach/facilitator and financial planner are part of the team as neutral professionals who work with both husband and wife, sometimes singularly with clients to save on fees. For instance, the Financial Neutral has a lower hourly rate and is the one who gathers and compiles all financial data to present to the attorneys for their review.
Professionals who specialize in Collaborative Law receive training which emphasizes effective communication, cooperative negotiation and creative problem solving. Many attorneys who participate as collaborative attorneys also have years of experience as mediators, as do the other professionals on the team.
If during the process there are issues that the parties just cannot resolve with the Collaborative Team, the items in question may be submitted to an arbitrator or a retired judge for a decision. This preserves the integrity of the Collaborative process and eliminates court intervention. If it is truly not possible to reach an agreement, the parties are free to terminate the collaborative process and go to court.
One party’s decision to terminate the collaborative process means that both attorneys and all experts previously involved in the case are released. The Collaborative Process, therefore, has a built-in incentive for everyone concerned to continue to work to find an agreeable settlement. It also means this process is not for everyone. A solid commitment working through the issue is essential.
Author: Bert Dempsey has been practicing law for 35 years and has been a mediator since 1996. He attended the first Collaborative Law training in Colorado in 2001. He can be reached at 303-554-1415.