by   Charles J. McEvily
from   The Matrimonial Strategist
published   September 11, 2007
Click here for a printable version [pdf]

The hallmark of the Collaborative Divorce Process is the execution of a participation agreement by both parties and their lawyers that a judicial resolution will not be sought regarding any issue. In fact, the collaborative participation agreement requires that the parties discharge their collaborative attorneys and retain new counsel for litigation if the issues cannot be resolved amicably.

This article explores the Interdisciplinary Collaborative Divorce Process. In the Interdisciplinary Collaborative Divorce, one of the parties chooses the collaborative process after consultation with a collaborative attorney or a mental-health professional who participates in a collaborative practice group. If both husband and wife decide that the Inter-disciplinary Collaborative Divorce Process is appropriate, they select an interdisciplinary team to work with them in settling all issues.

‘TEAM’ DIVORCE

Under the Interdisciplinary Collaborative Law Divorce model (which an increasing number of collaborative practitioners believe is the preferred collaborative method), each party works with four professionals: his or her own lawyer; his or her own mental-health professional, called a “divorce coach”; a neutral financial specialist who works with both the wife and husband together to document assets, income and expenses; and (if there are children) a “child specialist” who works with the couple and their children to evaluate and resolve parental control and access issues.

All team members sign an interdisciplinary collaborative participation agreement. The team affords the depth of professional advice each of the parties needs to understand the options available to him or her and to their children. It empowers each party to participate in selecting the most preferable settlement options. The parties select each member of the team. Each team member has had training in the interdisciplinary collaborative method of divorce and belongs to the local collaborative practice group.

ROLES OF TEAM MEMBERS

The array of collaborative team members in some ways mirrors the resources available through the courts in many jurisdictions, but the role of each professional is markedly different in the collaborative process.

1. Child Specialist

   In litigation, a child’s law guardian, for example, counsels the judge about a resolution that seems reasonable, and the judge, as power figure, imposes the resolution on the parents and on the children. No follow-up is available if the judicially imposed resolution fails.

   In contrast, in the interdisciplinary team approach, a child specialist counsels the divorcing couple about the best way they can minimize the negative effects of divorce on their children and helps the parents, the parents’ coaches and the parents’ lawyers develop pragmatic solutions. The child specialist collaborates with the parents, the divorce coaches and the lawyers about resolving parental control and access issues in a way that is embraced not only by each parent, but by each child who is old enough to understand the process.

   While challenging, solutions reached by means of this process are usually honored post-divorce by each parent and each child. The parents and children have seen how collaborative compromise provides answers to problems and, post-divorce, have the model to employ as new issues arise. In addition, members of the collaborative team remain available to continue developing solutions post-divorce. In litigation, the statistics indicate that one parent or the other will reject a judge’s custodial solution or one of the children will continue to act out through destructive behaviors. Thus, it is not only the threshold divorce problems that get resolved in the collaborative process; many post-divorce issues never arise because the collaborative model can be re-employed to settle disputes without judicial intervention.

2. Financial Neutral

   In the same vein, in litigation, each party retains an expert who will present the court with the perspective most beneficial to that party. The court may appoint a financial neutral who must take these polarized positions and develop an equitable balance. The court-appointed financial expert helps the court resolve issues raised by the dueling financial experts hired by each party. This process frequently spirals out of control and reaches positions that neither the husband nor the wife desire. In contrast, the financial neutrals appointed by the courts do not function like those selected by a couple in an interdisciplinary collaborative divorce. The financial neutral in collaborative divorce is part of the couple’s team and develops goals based on the couple’s unique circumstances and mutual understandings.

   In the collaborative process, disclosure is cooperative and, therefore, efficient. Financial consensus or disagreements are unearthed quickly by both parties working with the financial neutral. Once identified, these issues usually can be resolved with the help of the financial neutral. Issues that the couple, and sometimes the lawyers themselves, frequently overlook or ignore can be raised and resolved by the financial neutral. Retirement and college planning choices, for example, are decisions on which the financial expert can provide guidance and creative alternatives. The financial neutral also provides an objective and calming voice in counseling clients and their lawyers about the family’s financial future. Most financial neutrals can also conduct appraisals of a business or professional practice.

3. Divorce Coach

   Undoubtedly, the most unique professional role in the collaborative process is fulfilled by the divorce coach. No similar or analogous role exists in the litigation model. However, the need for mental-health professionals in divorce is made apparent when experienced matrimonial attorneys are asked about the biggest impediment to resolving divorce cases. Inevitably, they respond that it is the emotional state of their clients that presents the major detour on the road to resolution. It may be a client’s anger, feelings of rejection, inability to accept the life-altering changes required by divorce, or it may be a plethora of other psychological issues that prevent a client from actively contributing toward solving the issues presented in every divorce. The divorce coach for each party helps the clients resolve these issues.

   In a supportive series of counseling sessions and four-way meetings (with coaches and clients), divorce coaches help each client understand the psychological dynamics involved in the transformative process he or she is experiencing. With increased self-awareness and the guidance of the coach, each party begins to communicate more effectively and becomes a true participant in the team solving the crises of his or her divorce. By observing coaches’ demeanor in four-way meetings, clients can model productive, solution-oriented behavior in meetings with the attorneys. Four-way coach meetings also permit clients to ventilate negative emotions in a safe environment.

   Utilizing mental health professionals as divorce coaches can be a very cost-effective tool to accelerate the movement of clients toward settlement. Coaches simply have more experience and credibility than the divorce lawyer at helping clients with the psychological transitions required in a divorce. Notably, the intervention of the divorce coaches is not therapy. Each coach’s role is focused and specifically addresses the client’s ability to identify and deal with emotional impediments to resolution. By doing this counseling better and faster than lawyers, coaches permit clients to move forward and enable them to interact with their lawyers more efficiently.

   No member of the collaborative divorce team is ethically permitted to provide services to the couple or their children outside the context of the collaborative process. The child specialist cannot become a child’s therapist; the divorce coaches do not become the parents’ therapists, and the financial specialist does not manage either party’s money after the divorce. In this way, the sole motivation for the team is the successful resolution of the issues presented in the divorce.

CONCLUSION

The Interdisciplinary Collaborative Divorce method is, of course, not a method that can be utilized by all couples. In marriages with a history of domestic violence, for example, this paradigm usually cannot work. However, in cases where this alternative is a viable option, it can be a powerful tool to help the couple and their children. When clients get the same information from such apparently diverse sources as lawyers, financial experts and mental health professionals, the collaborative process becomes more than the sum of its parts. It becomes a synergistic process that helps the family, including the children, learn new behaviors, develop new problem solving techniques and begin a post-divorce life with renewed hope.

Charles McEvily, a member of The Matrimonial Strategist’s Board of Editors, is a partner at DaSilva, Hilowitz and McEvily in Garden City, N.Y. A matrimonial attorney for over 35 years, he is a Fellow of the American Academy of Matrimonial Lawyers, which has certified him as a divorce mediator; a member of the New York Association of Collaborative Professionals; a Master of the New York Family Law American Inn of Court; and on the faculty of the National Institute of Trial Advocacy.